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THE QUEENSLAND
CRIMINAL REPORTS
BEING A / \^
REPRINT '
OF
ALL CRIMINAL CASES
REPORTED IN
THE SUPREME COURT REPORTS, Vols. 1 to 5 (1860 to 1881),
THE QUEENSLAND LAW JOURNAL and NOTES OF CASES,
Vols. I. to XI. (1881 to 1901),
THE QUEENSLAND STATE REPORTS and WEEKLY NOTES
(1902 to 1907).
WITH ANNOTATIONS
SHOWING WHAT CASES HAVE BEEN OVERRULED, FOLLOWED, !Eto.,
AND WITH REFERENCES TO THE SECTIONS OF THE
CRIMINAL CODE NOW APPLICABLE.
THOMAS MACLEOD, ESQ.
(Barrister- at-Law),
Editor of " The Queensland Justice of the Peace. " and
" Blair on Worker's Gompensation."
BRISBANE :
LAW BOOK COMPANY LIMITED.
1913.
P RE FACE. \\ '^^^ /
^-4wTre;t,i>
This volume of reprinted reports of Criminal Cases
has been compiled in order to have in a handy form, both
for Court work and for reference purposes, the cases decided
on this branch of the law in Queensland prior to the publica-
tion of The Queensland Justice of the Peace, to which it is
a companion volume. Difficulty has been experienced,
especially by new practitioners, in obtaining complete sets
of the reports (particularly the earlier volumes), from which
these cases have been reprinted, and in addition to such
difficulty, the price of the reports is a serious consideration.
Numerous requests have been made during recent years for
such a volume, and it is hoped it will prove of service, not
only to members of the Profession, but also to Magistrates,
Clerks of Petty Sessions, and members of the Police Force,
A Subject Index is included in order to facilitate quick
reference to cases. The Editor desires to express his
thanks to Mr. T. B. Hunter, Solicitor, who has personally
attended to the reading of the proofs and the checking of
references.
T. M.
Lutwyche Chambers,
March, 1913.
INDEX OF CASES.
A
PAQB
Abbott, R. v. . .
. . 354
Ah Sam, R. v. . .
186
Aird V. Skelton
476
Alberg, R. v.
337
Archibald, R. v.
44
Arrowsmith, R. v.
. . 491
Attwood, R. V.
26
s
Baird and Others, Williams v.
. . 166
Ball V. Humphreys, JSx parte Humphreys
. . 467
Barton, R. u. . .
. . 141
Beckman, R. v.
. . 381
Bennett, R. «. . .
23, 377
Berneoker v. White
. . 209
Bilbey v. Hartley and Others
219
Black V. Turner . .
283
Britcher v. Williams and Others
249
Bunney, K. v. . .
. . 265
Bunting and Walsh, R. v.
400
C
Camm, R. v.
. . 138
Carlo, Pedro, In re
. . 241
CarroU v. Hasz, Ex parte Hasz
467, 470
Caruchet, In re
359
Castles and Griffiths, R. v.
54
Cawley, R. v. . .
. . 314
Chabal, Ex parte, R. v. Lewis
. . 409
Chambers and Another, R.
V.
327
INDEX OF CASES.
PAGE
Clarke, Emmerson v.
71
Coath, R. v.
63
Collins, R. v. . .
24
Connell, B,. v. . .
. 286
Connolly v. Meagher, Ex parte Meagher
. 573
Cooney, Crudgington v. . .
414
Corbett, R. v. . .
. 463
Corvie and Lesnini, TA. v.
122
Court, In re
60
Craine, R. «. . .
. 350
Crown (Tim), B.. v.
. 303
Crudgington v. Cooney, Ex parte Cooney
414
Cunningham v. McFarlane and Another
129
Curran v. Dowzer and Others
160
Davies and MoMurdo, R. v.
150
Dixon, R. V. . .
. 174
Dodwell, n. V. ..
. 105
Dowling V. Fritz and Others
. 134
Dowzer and Others, Curran v.
160
Draper, R. v. . .
. 492
Duncan, R. v. . .
. 239
Dunshot, R. w. . .
. 365
e:
Edwards, McNamara v.
Edwards, R. v. . .
Emmerson v. Clarke
Ex parte Edwards
585
310
71
Ferrett, Ex parte, R. v. Wilson
11
Finlay, B,. v. . .
. 328
Fitzgerald, R. v.
494
Forrest, R. -y. . .
600
Franz, R. v.
238
Freeman, B,. v. . .
. 300
Fritz and Others, Dowling v.
. 134
Fuzil Deen, B. v.
307
INDEX OF CASES.
PAGE
Gallagher, Sheehan v. . . . . . . . . . . 426
Gash, B,. V.
131
Geise v. Hennessey, Ex parte Hennessey-
. 497
Glen, R. V.
. 361
Goldsmith v. Roche
52
Goldsworfchy, R. v.
. 334
Gomez, R. v. . .
. 119
Griffin (No. 1), R. w.
29
Griffin (No. 2), R. t;.
35
Griffiths and Castles, B,. v.
54
Griffiths and Others, R. v.
. 502
Grimes, R. v. . .
. 336
H
Hallam, Molloy v.
. . 478
Haly and Another, Rawlings v. . .
. . 234
Hamill, R. v. . .
. . 495
Hamilton, R. v.
195, 362
Hart, R. «.
357, 370
Hartley and Others, Bilbey v.
219
Hasz, Carroll v.
467, 470
Haughton, In re
. 110
Henderson v. Macdonald and Another
. 216
Hennessey, Geise v.
497
Hennessey, R. v.
27
Highfield, R. v. . .
. 117
Hill, n. V.
. 370
Hinckley, R. v. . .
189
Hobart and Murphy, R. «.
. 342
Hogan, K. V. . .
. 207
Hogan (Rody), B,. v.
207
Hook (Lum), R. v.
212
Hopkins and Eaton, R. v.
. 162
Horrocks, B,. v. . .
. 237
Hoskings, B,. v. . .
83
Houston, B. V. . .
. 269
Howells, Ex parte, R. v. Edwards . .
. 310
HuU, B.v.
. 396
Hull (No. 2), R. V.
. 403
Hume, B. V.
. 395
"VIU.
INDEX OF CASES.
PAGE
Humphreys, Ball v.
.. 467
Hustin (Louis), R. v.
. . 124
<T
Jack, R. w.
256
Jacobs, R. ■«. . .
. . 538
James, R. v. . .
. . 329
Jenkins, McNamara v., Ex parte Jenkins
581
Jimmy, R. v. . .
93
Jooumsen, R. ■y.
396
Johnson, B,. v. . .
.. 215
Johnstone; R. v.
591
Jong Song V. Joy Hoy and Others . .
348
Joy Hoy and Others, Jong Song v.
348
Judge, R. I).
168
Justices of Dalby, Ex parte, O'Keefe, R. v. . .
. . 420
If
Kearley, R. v. . .
. . 601
KeUy, n. V.
78
Kennedy and Royston, R. v.
123
Kenniff, B,. v. . .
422, 432, 434
KennifE (No. 2), R. v.
. . 432
Kiefer, Millis v.
. . 376
King, R. v.
95
King, R. v., Ex parte King
1
Knack, R. v. . .
. . 203
Koghie, B. V. . .
189
Kovalky, R. •y. . .
295
Kuruwaru, R. v.
372
Xa
Lang and Murphy, R. v. . .
352
Lannon, R. v. . .
. . 486
Leane, R. «.
. . 492
Lesnini and Corvie, R. v. . .
122
Levy, B. V.
56
Lewis, R. i;.
25
Lewis, Ex parte Chabal, R. v.
. . 409
Long V. Rawlins
87
Long, In re
91
INDEX OF CASES.
IX
Longland, R. v. . .
Louis Hustin (called Watier), R. v.
Lum Hook, R. «.
Lynch, R. v.
PAOB
325
124
212
537
BS
Macdonald, R. v.
Macdonald and Another, Henderson v.
Maguire and Schloss, R. v.
Malone, R. v.
Mangin, R. v.
Many Many and Others, R. v.
Meagher, Connolly v., Ex parte Meagher
MiUis V. Kiefer . .
MiUs, Swanwick v.
Minnis, In re
Molloy V. HaUam
Moody, U. V.
Moran, R. v.
Murphy and Hobart, R. v.
Murphy and Lang, R. v.
Murphy and Others, R. v.
Murray, R. v.
McDermott, R. v.
McFarlane and Another, Cunningham v.
McGee, U. v.
McMurdo and Da vies, R. v.
McNamara v. Edwards, Ex parte Edwards
McNamara v. Jenkins, Ex parte Jenkins
MT
Nugent, R. v.
386, 505
216
337
461
261
296
573
376
191
134
478
344
335
342
352
549
370
433
129
279
150
585
581
24
O'Byme, Ex parte, Smith v. O'Byrne
0' Byrne, Smith v.
O'Keefe, Ex parte, R. v. Dalby Justices
Oliver, Ex parte, R. v. Murray
252
252
420
370
Parker, R. v.
Patterson, R. v.
140
580
INDEX OF CASES.
Pearce, R. v.
, ,
, ,
. 532
Pearson, R. v. . .
39
Peim, R. V.
62
Pieremont, R. r.
. 175
Pierson, The King v., Ex parte Small
. 549
Portley, R. v. . .
81
Priday, R. v. . .
. 384
Priday, Ex parte, R. v. Priday
. 384
Pugh, R. V.
13
IC
Rawlins, Long v.
87
Rawlings v. Haly and Another
. 234
Richert, R. «. . .
. 335
Robinson, B.. v. . .
. 285
Roche, R. v..
. 204
Roche, Goldsmith v.
52
Rody Hogan, R. v.
. 207
Ross, R. v.
. 298
Royle, R. v.
. 272
Roys, R. i;.
351
Royston and Kennedy, R
V.
123
Ryan, B,. v.
"
. 553
B
Sam (Ah), R. v. < .
186
Schloss and Maguire, R. v.
337
SeUheim and Others, Viokers v. . .
. 136
Shaw, R. D.
. 337
Sheehan v. Gallagher, Ex parte Sheehan
. 426
Sidney, Ex parte, R. v. White
8
Skelton, Aird v.
. 476
Small, Ex parte. The King v. Pierson
. 549
Smith V. O'Byrne i.
. 252
Spence, R. v. . .
. 335
Street, R. ■;;. . . . . . . ~
. 196
Strutt, Ex parte, R. v. Macdonald . .
. 386
Swanwick v. Mills
. 191
T
The King v. Pierson, Ex parte Small . . . . . . 549
Tidbury, B,. v. ..
.
,
. 349
INDEX OF CASES.
XI
Tim Crown, R. v.
Tracey, R. v.
Turner, Black v.
FAOB
303
299
283
Vickers v. Sellheim and Others
Vos, R. «.
Vos and Others, R. u.
136
334
288
vsr
Walsh and Bunting, R. v.
Warden, R. v. . .
Warton, B,. v. . .
WeUs, R. V.
White, Bemecker v.
White, R. v.. Ex parte Sidney
Whitehouse, R. v.
WilMe, B,. V.
Williams v. Baird and Others
Williams and Others, Britcher v.
WiUie, B.. V.
Wilson, R. «.
Wilson, R. v., Ex parte Ferrett
Wisher and Another, R. v.
308, 366,
400
353
540
112
209
8
392, 396
41
166
249
336
336
11
323
Queensland Justice of tlje Peace.
CRIMINAL REPORTS.
1860-1907.
R. V. KING, Ex parte KING.
[1 S.C.R. 1.— Note— See ss. 12, 13, 14. 557 (8) of Criminal Code, 41 and 55 Vic,
c. 69 ; Extradition Act, 1903 (No. 12 of 1903].
Habeas corpus — Remand of prisoner where the Court has no jurisdic-
tion to try o'ffence — Corpus delicti — Arrest of prisoner on
suspicion of a felony committed beyond the territorial limits of
the colony — Comity of nations — Delivery up of fugitives from
justice — Extradition — 2 Vic, No. 11 — 6 and 7 Vic, c. 34,
ss. 2, 3, 4, 5, 6, 9—16 and 17 Vic, c 118.
A constable has no power to arrest a person on suspicion of having committed
a felony beyond the territorial limits of the colony, unless such felony be supposed
to have been committed upon the high seas and within the limits of the
Admiralty jurisdiction of the Supreme Court of Queensland.
If an arrest appears to have been improperly effected, the Court cannot
remand a prisoner, unless there be some ofience committed by him within the
jurisdiction of the Court.
Independent of special compact, no state is bound to deliver up fugitives
from justice upon the demand of a foreign state, and there is no rule of the law
of nations which requires the Supreme Court of Queensland to assist the police
of a foreign dominion in bringing offenders to justice.
Application by William King for his discharge on the return
to a writ of habeas corpus.
I860.
23nd February,
25th March.
Lutwyche.
a QUEENSLAND JUSTICE OF THE PEACE.
ExparuKi^a. Blalceney appeared for the prisoner.
Pring A.O. to oppose the application.
The facts and arguments appear sufficiently in the judgment.
C.A.V.
25th March, 1860.
ulwyc e J. LtTTWYCHE J. : A rule nisi having been obtained in Chambers
for a habeas corpus directing the keeper of the gaol at Brisbane to
bring up the body of WiUiam King, in order that he might be
discharged from custody, on the first day of the present Term, he
was accordingly brought into Court, and the return made by the
gaoler was that King had been committed to his custody by ^drtue
of a warrant of remand signed by two Justices of the Peace in
and for the Colony of Queensland, and setting forth that King
had been charged before them with felony, and that it had
appeared to them to be necessary to remand him ; and that the
said warrant commanded the gaoler to receive King into his
custody, and there keep him until the 25th day of February,
when he was thereby commanded to have King at the Police
Office, Brisbane, at 10 o'clock in the forenoon, before the said
justices, or before such other justices or justice of the peace
for the said Colony ^s might then be there, to answer further
the said charge. The depositions taken before the justices
were also returned, and from them it appeared that King was
taken into custody by the Chief Constable of the Brisbane Police,
on the 17th February, 1860, on suspicion of having caused the
death of one Nicholas Deer, at Maryland, in the Colony of New
South Wales, by inflicting a wound on his body with shears,
or some such instrument, on or about the 25th November, 1859,
It appeared also that he had been committed by the Warwick
Bench of Magistrates to take his trial for the offence at Brisbane,
and that at the Brisbane February Assize he had been discharged
by the order of the Judge, upon the statement of the Attorney-
General that he had no charge to make against the prisoner,
on account of want of jurisdiction.
Mr. Blakeney was heard on King's behalf, and the Attorney-
General argued the case on the part of the Crown, citing the
dictum of Heath J. in Mure v. Kay (4 Taunt. 43) ; Burn's Justice,
Tit., Habeas Corpus ; Ex parte Krans (1 B. & C. 258, 2 D. & E.
CRIMINAL REPORTS, 1860-1907. >
411), Rex V. Marks (3 East. 157), Ex 'parte Scott (9 B. & C. 446, ^K- "■ ^Ma,
^ ^ £xpartfi Kino.
4 M. & R. 361). On account of the great importance of the
question, the Court took time to consider and prepare a written " ^^"^
judgment, which I shall now deliver.
I am of opinion, in the first place, that no constable has power to
arrest any person on suspicion of his having committed a felony
beyond the territorial limits of the colony, unless such felony be
supposed to have been committed upon the high seas, and within
the limits of the Admiralty jurisdiction of the Supreme Court.
The cases which establish, in general terms, that a constable may
without warrant arrest a person upon a reasonable suspicion
of felony (See Davis v. Russell, 5 Bing. 354, 2 M. & P. 590 ;
Beckwith v. Philby, 6 B. & C. 635, 9 D. & R. 487) will not be
found to support, if carefully examined, the universal application
of the rule. The " great original and inherent authority with
regard to arrests " (4 Steph. Comm. 359), which a constable
undoubtedly possesses, is limited by the boundaries of the state
or dominion in which he holds his office. If the law were other-
wise, the power of arrest on suspicion might become, in this
part of the globe, an engine of the most grievous oppression. It
is clear that if such a power exists, in reference to felonies com-
mitted out of the colony, it might be exercised wherever a felony
has been committed, or is supposed to have been committed,
in any part of the British Empire, to say nothing of the dominions
of foreign powers. Is a man, then, to be arrested and committed
to gaol in this colony because the constable has received informa-
tion which leads him to suspect that his prisoner was concerned
in some felony at Delhi or British Columbia ? And, if com-
mitted to gaol, how long is he to be kept there ? This Court
would not have any jurisdiction to try him for the offence. Is he to
abide in gaol untU the authorities of some distant portion of the
Empire have been communicated with, and have signified their
intention to remove him at the first convenient opportunity ?
Common sense, which is very often found in the closest alliance
with the law of England, revolts at the suggestion of imprisoning
a man for twelve or eighteen months before trial ; yet, if the
imprisonment be designed to insure his being brought to trial, as
long, or even a longer interval would occasionally elapse.
It was contended, however, on the part of the Crown, that,
4 QUEENSLAND JUSTICE OF THE PEACE.
E. « Kino, assuming the caption to have been improperly efeected, yet if a,
Mx parte Kino. ^ ^ \ n t- ■^^ ^
corpus delicti appear on the depositions, the Court wui remana
Lutwyche J. ^^^ prisoner. But what is meant by a corpus delicti 1 My
opinion is clear that it can only apply to some offence committed
within the jurisdiction of the Court. From the depositions it
appears that the felony with which King stood charged before
the justices was committed in Maryland, then and now within
the colony of New South Wales, on the 25th November last. Upon
the proclamation of the Queen's letters patent on the lOtn
December following, the district of Moreton Bay was separated
from New South Wales, and became a distinct dominion under
the name of Queensland. An appeal no longer lies from its
Supreme Court to the Supreme Court at Sydney, and the con-
current jurisdiction within twenty-five miles of each side of the
border line with which the Judges of each Court were invested,
has, by force of the Act of Separation, been abolished. The offence
charged is shown, therefore, to have been committed within a
foreign dominion, and as, according to the common law of Eng-
land, " criminal offences are considered as altogether local, and are
justiciable only by the Courts of that country where the offence is
committed " (See "Wheaton's Elements of International Law," 6th
Ed., 1857, p. 175), King can only be tried by the Court of New
South Wales ; and no such corpus delicti appears on the face of
the depositions as would justify this Court in remanding the
prisoner to custody.
The Court was pressed by the Attorney-General to remand the
prisoner on another ground, viz. : — The obligation imposed by
the law of nations to assist in bringing a criminal to justice,
' and he relied on a dictum of Mr. Justice Heath, who, in the case
of Mure v. Kay (supra), is reported to have said : — " It has-
been generally understood that wheresoever a crime has been
committed, the criminal is punishable according to the lex loci
of the country against the law of which the crime was committed ;
and by the comity of nations, the country in which the criminal
has been found, has aided the police of the country against
which the crime was committed in bringing the criminal to punish-
ment. In Lord Loughborough's time, the crew of a Dutch
ship mastered the vessel and ran away with her, and brought
her into Deal ; and it was a question whether we could seize
CRIMINAL REPORTS, 1860-1907. £
them, and send them to Holland ; and it was held we might. „K- "■ -ij",
Ex parte King.
And the same has always been the law of all civilized countries." —
The reputation of Taunton, as a reporter, does not stand very ^
high, and it is, therefore, possible that he may have misunder-
stood what fell from the learned Judge, and have stated too
broadly the general proposition. Of the grounds of the decision
in the particular case referred to, we are not informed ; but it
may be observed that there may be Acts within the competency
of a sovereign state which could not be constitutionally under-
taken by a dependent dominion like a colony. At all events,
whatever may be the value of the precedent in a case of piracy,
it does not establish the position that, " by the comity of nations,
the country in which the criminal has been found, has aided the
police of the country against which the crime was committed
in bringing the criminal to punishment." On the contrary,
both a priori reasoning and the evidence of indisputable facts
point to the conclusion that such an obligation has not yet been
imposed by that code which we call the law of nations. A much
higher authority than Mr. Justice Heath — I refer to that dis-
tinguished publicist, Mr. Wheaton — states the question thus : He
says (pp. 176-7), " The public jurists are divided upon the question
how far a sovereign state is obliged to deliver up persons, whether
its own subjects or foreigners, charged with or convicted of crimes
committed in another country, upon the demand of a foreign state,
or of its officers of justice. Some of these writers maintain the
doctrine that, according to the laws and usage of nations, every
sovereign state is obliged to refuse an asylum to individuals
accused of crimes affecting the general peace and security of
society, and whose extradition is demanded by the Government
of that country within whose jurisdiction the crime has been
committed. Such is the opinion of Grotius, Heineccius, Bur-
lamaqui, Vattell, Rutherforth, Schmelzing, and Kent. Accord-
ing to Puffendorf, Voet, Martens, Kliiber, Leyser, Kluitt,
Saalfield, Schmaltz, Mittenmeyer, and Heffter, on the other
hand, the extradition of fugitives from justice is a matter of
imperfect obligation only ; and though it may be habitually
practised by certain states, as the result of mutual comity and
convenience, it requires to be confirmed and regulated by special
compact, in order to give it the force of an international law ; and
QUEENSLAND JUSTICE OF THE PEACE.
B. V. King, the last mentioned learned writer considers the very fact of the
Ex parte Kisa. . , ,. a.- i.i.- it
existence of so many special treaties respecting this matter as
Lutwyohe J. conclusive evidence that there is no such general usage among
nations, constituting a perfect obligation, and having the force of
law properly so called. Even under systems of confederated
states, such as the Germanic Confederation, and the North
American Union, this obligation is limited to the cases and con-
ditions mentioned in the federal compacts. The negative doctrine^
that, independent of special compact, no state is bound to deliver
up fugitives from justice upon the demand of a foreign state,
was maintained at an early period by the United States Govern-
ment, and is confirmed by a considerable preponderance of
judicial authority in the American Courts of Justice, both state
and federal."
The " negative doctrine " thus maintained in the United States
has been tacitly recognised of late years by England, France, and
Prussia, who have entered into treaties with the United States for
the extradition of criminals charged with certain specified offences.
A treaty has also been made between England and France for the
same object, and the Acts of the Imperial Parliament, 6 and 7
Vic, c. 75 and c. 76, were passed to carry into effect the con-
ventions with France and the United States for that purpose.
By entering into treaties on the subject, each of these powers
has, I conceive, admitted that a special compact was necessary
to obtain the object desired ; by limiting the scope of the treaty
to a certain class of offenders, each country practically asserted
its right to afford an asylum to all other fugitives from justice.
Political offences affect as much as any other, sometimes much
more, the general peace and security of society ; yet, it is well
known that England has never felt herself obliged, by the comity
of nations, to assist the police of the country against which the
political crime was committed in bringing the criminal to punish-
ment, even though the crime amounted to high treason.
Enough, then, has been said to show that a constable cannot
arrest any person on suspicion of a felony committed beyond the
limits of the dominions to which he himself belongs ; that the
Court cannot remand the prisoner when it has no jurisdiction
to try him for the felony alleged to have been committed ; and
that there is no rule of the law of nations which requires the
CRIMINAL REPORTS, 1860-1907. '
Court to assist the police of a foreign dominion in bringing _^- ^- ;^"'''
„ J . Ex parte King.
OEfenders to justice. There are, however, two enactments, one
a Colonial Act of Council, the other an Imperial Statute, which '^^^
must be noticed, inasmuch as the former (2 Vic, No. 11, Call. 501)
bears out the view taken by the Court, and shows specific legis-
lation on the subject to have been considered necessary ; while
the latter (6 and 7 Vic, c. 34, amended by 16 and 17 Vic, o.
118) points out the course which ought to have been adopted
in the present case, and which must be pursued in future.*
The object of the Colonial Act, 2 Vic, No. 11, is well indicated
by its title, " an Act to facilitate the apprehension of offenders
escaping from the Island of Van Dieman's Land, or from South
Australia, to the colony of New South Wales." It is unnecessary
to recapitulate its provisions, as the Act itself has been virtually
repealed by the Imperial Act subsequently passed, 6 and 7 Vic,
c. 34. That Act, which was not mentioned during the argument,
now extends to all felonies (see 16 and 17 Vic, c 118), and the
sections material to the present matter are ss. 2, 3, 4, 5, 6, and
9. These sections are set out at length in Oke's Magisterial
Synopsis, 6th Ed., 1858, pp. 640-645, and it will be seen that,
while they effectually provide for the apprehension of offenders
flying from justice, they also furnish ample safe-guards for the
liberty of the subject. No person who has committed a felony,
not triable by this Court, can be arrested in the colony of Queens-
land, except a warrant against him has first been issued by some
person or persons having lawful authority to do so. This warrant
must be brought to the Judge of the Supreme Court, who is to
require proof on oath or affidavit that the seal or -signature in the
warrant is the seal or signature of the person whose seal or
signature the same purports to be. On such proof being given, the
Judge is to endorse his name on such warrant, which warrant, so
endorsed, is to be a sufficient authority to the person or persons
bringing such warrant, and also to all persons to whom such
warrant was originally directed, and also to all peace officers of
the place where the warrant shall be so endorsed, to execute the
same within the jurisdiction of the Judge, by apprehending the
person against whom such warrant was directed, and to convey
him before a magistrate, or other persons having authority to
* See now 44 and 45 Vic, c. 69 (P. & W. 3122).
R. V. EiKG,
Ex parte King.
Lutwyche J.
QUEENSLAND JUSTICE OF THE PEACE.
examine and commit offenders for trial in this colony. The
magistrate is then authorised, upon such evidence of criminality
as would justify his committal if the offence had been com-
mitted in Queensland, to commit the offender to prison until he
can be sent back to that part of her Majesty's dominions in which
he is charged with having committed such ofiEence ; and immedi-
ately upon his committal, information thereof, in writing, under
the hand of the committing magistrate, accompanied by a copy
of the warrant, is to be transmitted to the Governor of the colony.
The Governor may then, by warrant, under his hand and seal,
order the person so committed to be delivered into the custody
of some person or persons, to be named in his warrant, for the
purpose of being conveyed into that part of her Majesty's
dominions in which he is charged with having committed the
offence, there to be dealt with in due course of law ; and if the
person so committed to gaol be not conveyed out of the colony
accordingly, within two calendar months after his committal,
he. may, on application to the Judge, be discharged.
The result of the present application is that the Court holds
the prisoner to be entitled to his discharge.
1860.
23rd February.
1st March.
Lutwyche J,
R. V. WHITE, Ex parte SIDNEY.
[1 S.C.R. 9.— Note.— 13 Vic, No. 29 and 17 Vic, No 6, are repealed. See now s.
109 of Licensing Act of 1885 (49 Vic, No. 18). 22 Vic, No. 7, mentioned by
Lutwyche J., has been repealed, see now s. 3 of Criminal Law Amendment
Act, 1892 (56 Vic, No. 3)J.
Criminal proceedings — Justices' refusal to hear evidence— The
Licensed Publicans' Act of 1849 (13 Vic., No. 29), ss. 2, 69—
— -17 Vic, No. 6, s. 3 — Sale of liquor in quantity not being
less than two gallons.
Whenever a statute authorises the imprisonment of an offender against its
provisions, whether it be as the primary punishment for the offence, or as
punishment in the last resort, the proceedings against him must be regarded as a
criminal proceeding.
Application on behalf of John Sidney for a writ of prohibition
against J. C. White and C. Coxen, Justices, and James Shelton,
CEIMINAL REPOETS, 1860-1907. 9
prosecutor, to restrain further proceedings upon a conviction R- "• White,
1 , r. TT. -., ~ o J. ^^ parte Sidney.
under 13 Vic, No, 29, s. 2, of the said John Sidney.
Blakeney, for applicant, to move rule absolute.
Pring A.Q. to show cause.
The facts and arguments of counsel appear fully in the
judgment of the learned Judge.
C.A.V.
1st March, 1860.
LuTWYCHE J. : The applicant had been convicted under the Act Lutwyche J.
13 Vic, No. 29, s. 2, for selling two bottles of rum, he not then
having a publican's general license ; and a rule nisi for a prohibi-
tion was subsequently granted upon the following grounds :—
1st. That the justices improperly refused to hear the evidence
■of the wife of the applicant, which was tendered on his behalf.
2nd. That neither in the information, nor the conviction, was
it alleged that the quantity disposed of was less than two gallons.
Cause was shown against the rule on the second day of Term
(Thursday, February 23), and it was agreed on both sides that the
judgment of the Court, whenever delivered, should be taken
as of the Term.
The first point turns upon the meaning of the words in the
3rd section of the Act 22 Vic, No. 7, which provides that nothing
in the Act shall render any wife competent or compellable to give
evidence for or against her husband in any criminal proceedings.
It was contended by Mr. Blakeney, on the part of the applicant,
that the proceedings against him under the Act of CouncU above
mentioned was not a criminal proceeding, because the primary
punishment 'contemplated by the Act was a pecuniary penalty.
The cases, however, which he cited Attorney -General v. Badloff,
10 Ex. 84 ; 23 L.J., Ex. 240 ; 10 Jur. 555 ; Easton's Case, 12
Ad. & Ell. 645 ; A.G. v. Siddon, 1 C. & J. 220 ; Backham v.
Bluck, 9 Q.B. 691), fail to establish this position. In the
Attorney-General v. Badloff, the Court of Exchequer was divided
n opinion whether an information for penalties under the
Smuggling Acts, at the suit of the Attorney-General, was a
criminal proceeding punishable on summary conviction. No
inference is deducible, therefore, either way, from that case. In
Easton's case, the decision of the Court was, that a person sen-
10
QUEENSLAND JUSTICE OF THE PEACE.
K. I'. White,
Ex parte Sidney.
Lutwyehe J.
tenced by two Justices to imprisonment with hard labour, under
the Smuggling Act, is in execution in a criminal matter. That
case, consequently, does not assist the applicant. The observa-
tions of Mr. Baron Bayley, in the Attorney-General v. Siddon,
merely go to show that an information for penalties at the suit
of the Attorney-General is a civil and not a criminal proceeding ;
and Rackham v. Bliick only decides that a proceeding in the
Consistorial Court, to recover penalties against a clergyman for
non-residence, is a civU and not a criminal suit. In none of
these cases was the pecuniary penalty the primary punishment
of the offence ; it was the sole punishment. And I am of opinion
— an opinion borne out even by the authorities cited in support
of the application — that whenever a statute authorises the
mprisonment of an offender against its provisions, whether it be
the primary punishment of the offence, or punishment in the last
resort, the proceeding against him must be regarded as a criminal
proceeding. In Easton's case (12 Add. Ell. 648), Lord Denman
says : " This must be called a criminal matter ; the party is
sentenced to imprisonment with hard labour, which puts the
point beyond a doubt." And in the Attorney-General v. Radloff
(23 L.J. (Ex.) 248), Mr. Baron Piatt, whose judgment was cited
in support of the application, puts the distinction between civU
and criminal proceedings as turning upon the liability to im-
prisonment. The 69th section of the Act under which the applicant
was convicted, authorises, in the event of non-payment of the
penalty imposed, a distress upon the offender's goods, and, in
case of the distress being insufficient, imprisonment of his person
for a limited period. And the Act, 17 Vic, No. 6, s. 3, empowers
the Justices, in all cases of conviction under the Act, 13 Vic,
No. 29, s. 2, to add imprisonment, in the first instance, to the
pecuniary penalty. There can be no doubt, therefore, that this
was a criminal proceeding, and the Justices properly refused
to hear the evidence of the applicant's wife.
The second point is of less importance, and may be disposed of
shortly. The objection to the proceedings is that neither the
information nor the conviction, based upon the second section
of the Act, alleges a matter which is made the subject of excep-
tion in the third section, and declares that the quantity dis-
posed of was less than two gallons. It may be worthy of con-
CRIMINAL REPOETS, 1860-1907. 11
sideration whether such an allegation would be in any case R- ^- Whitb,
Ex parte Sidney
necessary, and whether it would be not incumbent on the party
accused to bring himself within the exception, and to show LutwyoheJ.
that he, being a person within a proclaimed place, sold a quantity
of spirits, not being less than two gallons. But I do not decide
that point now. My judgment is founded upon the fact that the
proceedings before the convicting magistrates were had by
summons, and that in such summons the general nature of the
complaint was succinctly stated, pursuant to the proviso in
the 69th section of the Act 13 Vic, No. 29. A formal informa-
tion in writing had been exhibited before the magistrate who
issued the summons, but it was not used afterwards ; and, conse-
quently, the defendant could not have been placed in a worse
position than if the complaint had originally been made orally.
Credit may be given to the Court for knowing enough of the
common affairs of life to take cognizance that two bottles of
rum fall short of the quantity of two gallons. The summons
gave the magistrates jurisdiction, and in so plain a case every
intendment ought to be made in favour of its exercise.
The rule for a prohibition is accordingly discharged.
R. V. WILSON, Ex parte FERRET.
[1 S.C.R. 12.— Note See. 8 of 17 Vie., No, 3, Is repealed, see now s. 445 ol
Criminal Code.]
Prohibition — Illegally branding — 17 Vic, No. 3, ss. 3, 10 — Costs i860.
against justices. 30th April.
A conviction under s. 6 of 17 Vic, No. 3, of the " illegal possession and branding Lutwyche J.
of a filly " is bad.
Where magistrates retain counsel to support a conviction after the Attorney-
General has advised that the conviction cannot be sustained, and a writ of
prohibition is granted, they are liable for costs.
Motion on behaK of John Ferret to make absolute a rule nisi for
a writ of prohibition against John Kerr Wilson, Henry William
Coxen, and William Giles Gordon, Justices, and William Miles, to
restrain further proceedings on an order by the said justices
against the said applicant, and to recover from the said justices
the costs of the appUcation.
]2
QUEENSLAND JUSTICE OF THE PEACE.
R. o. Wilson,
Ex parte Fbbbbt.
Latwyohe J.
The facts and arguments appear suificiently in the judgment.
Blakeney, for the defendant, moved rule absolute.
Lilley appeared for the justices, to show cause.
C.A.V.
LtTTWYCHE J. : A rule was obtained on the 6th of February last,
on the part of John Ferret, calling on the abovenamed justices,
and William Miles, to show cause why they should not be pro-
hibited from proceeding on a conviction pronounced against
Ferret on the 21st January last, and why a fine of £10 and costs
should not be refunded.
The information and conviction (under the Act of Council
17 Vic, No. 3, s. 6), described Ferret's offence as the " illegal
possession and branding of a filly," and consequently the infor-
mation and the conviction are bad on the face of them, as pointed
out in the fourth ground upon which the rule was obtained.
The offence described in the section is a " taking, using, or
working " of cattle without the owner's consent ; but instead
of following the words of the Act, as s. 10 prescribes, the infor-
mation and conviction charge an illegal possession and branding,
which might indeed be evidence of a taking, or using, without the
owner's consent, but which is not declared by the Act to be an
offence per se. The point is so clear that I should not have
thought it necessary to deliver a written judgment, if Mr.
Blakeney had not applied for the costs of the day against the
magistrates, who had retained Mr. Lilley to appear in support
of the conviction, after having been officially informed by the
Attorney-General that the conviction could not be sustained. The
applicant was thereby put to unnecessary expense in employing
counsel to support the rule ; and if this had not been the first time
that the question had arisen, I should have made the rule for a
prohibition absolute, with the costs of the day to be paid by the
magistrates. But it must be distinctly understood that, in future,
the magistrates will be visited with costs, if the conviction be
quashed, whenever they choose to employ counsel •to support
their view of the law, after having been informed by the highest
legal authority at the bar that the matter is not arguable. Their
official position enables them to obtain gratuitously the advice
and assistance of the Attorney-General, and if he tel s them
CRIMINAL REPORTS, 1860-1907. 13
they have mistaken the law, as all men may do sometimes, they K. v. Wilson,
, . Ex parte FssRET.
ought to acquiesce, and not oppress a person who has been
illegally convicted by putting him to expense which he may not Lutwyohe J.
be so well able to afford as themselves. In the present case,
however, the rule for a prohibition must be made absolute without
costs.
R. V. PUGH.
[1 S.C.R. 63.— Note.— See now ss. 44 and 52 ol Criminal Code. 11 Vic, No. 13,
s. 10, referred to in tlie judgment, is repealed, see now s. 376 ol Ciiminal Code.
Also 25 Vic, No. 17, and 13 Vic, No. 8, mentioned in the judgment, are since
repealed.]
Seditious libel — Information by Attorney -General, ex officio, by 1862.
resolution of the Legislative Council — Charge to jury in trial aSrd^Augmt.
for seditious libel — Law and custom of Parliament — 32 Oeo. Luucyche J.
III., c. 60, s. 1.
The Attorney-General, ex officio, by direction of the Legislative pouncil of
Queensland, filed an information against the printer and publisher "of a newspaper,
for an alleged seditious libel on that body.
LuTWYCHE, J., charged the jury that a seditious libel could not be published
of and concerning the Legislative Council.
Ikfoemation presented by the Attorney-General, ex officio, at
the request of the Legislative Council, against Theophilus Parsons
Pugh, for having printed and pubHshed in the Courier, on 30th
July, 1861, a seditious Ubel of and concerning the Legislative
Council of Queensland.
Pring A.G. and Bramston prosecuted.
Gore Jones and Carey for the defendant.
A plea that the Court had no jurisdiction, as being illegally
constituted, was overruled. The learned Judge stated that he
held his commission under the Imperial Statute, 18 and 19 Vic,
c. 54, and referred to the order of Council of 5th June, 1861.
A plea of not guilty was then entered.
LxTTWYCHE J., at the conclusion of the trial, delivered the ^ , , ^
Lutwyohe J,
following charge to the jury :—
14
QUEENSLAND JUSTICE OF THE PEACE.
PUGH
Lutwyche J.
Gentlemen of the jury.— The defendant in this case, Theophilus
Parsons Pugh, is charged by the Attorney-General, acting ex officio,
with the publication of a false, scandalous, malicious, and seditious
libel in the Courier of 30th July last, of and concerning the Legis-
lative Coiincil of this colony. The defendant has pleaded " not
guilty " to the information which has been filed, and you are to
say by your verdict whether you think the defendant has pub-
lished a seditious libel or not. There are reasons, gentlemen, for
desiring that this case should have been tried before any other
Judge than myself. The article in the Courier, which is alleged
to reflect in a seditious manner on the Legislative Council, con-
tains a warm defence of the conduct of Mr. Justice Lutwyche, as
well as a warm attack upon the conduct of the Legislative Council,
in reference to the present Judge of the Supreme Court. I am
placed, therefore, in a very invidious position, and the duty
M'hich I have to perform this day is far from being agreeable to
me. But, gentlemen, whether the performance of a duty be agree-
able or not, a duty must be discharged, and I shall endeavour to
fulfil mine in such a manner as to leave as little occasion as
possible for unfavourable comment. I shall deal with this case
precisely in the same way, and direct you on points of law in the
same terms, as if the Judge whose conduct has been censured by
the Legislative Council were my colleague on the Bench, or say,
for instance, the gentleman who is senior in point of standing at
the Bar, Mr. Blakeney. I shall pursue in this case the same
course which I have invariably followed ever since I have had the
honour of a seat on the Bench of the Supreme Court, in civil
actions for libel and slander. I shall not express any opinion
of my own upon the alleged calumnious character of the pubUca-
tion, nor shall I say what I think of the conduct of the defendant
in relation to the circumstances which have been disclosed by the
evidence. But I shall be bound to tell you whether this pubhca-
tion, assuming it to contain a false, scandalous, and maUcious
libel upon the Legislative Council, amounts to a seditious libel, for
that, as the case now stands, is purely a question of law ; and, as
there is no appeal from my decision in criminal matters, I thought
it right, in order that I may neither be misunderstood nor mis-
quoted, to reduce my charge into writing.
As you will perceive, I have anticipated all the points which
have been raised at the bar, and have considered some points
which have not been urged by counsel, but which, nevertheless,
appear to me necessary to be discussed, in order to arrive at a
CRIMINAL REPORTS, 1860-1907. 15
proper understanding of the great constitutional question involved ^- *'• P""^-
in this trial. Lutwyche J.
(The learned Judge here read over the information and the
notes which he had taken of the evidence, and then proceeded
as follows) : —
I am constrained, in the outset, to express my disapprobation of
the manner in which this information has been drawn. In the
copy which lies before me, there is much matter which does not
reflect on the Legislative Council in any way. I suppose, to save
trouble, it was deemed expedient to insert the article in the
Courier entire, but such a course is hardly fair towards a defendant,
as it must tend to distract his attention from the charge which
he has to meet, and it swells the costs of the defence, which,
whether he be convicted or acquitted, the defendant will have to
pay. I hope I shall not have occasion, in any future prosecution
for a libel, to repeat these remarks.
Gentlemen, the offence known to the law as libel consists in
the malicious publication of defamatory matter, expressed either
in writing or in printing, or by signs or pictures, and which
publication tends either to corrupt the mind of the public, and
to destroy the love of decency, morality, and good order ; or,
in the case of an individual, to expose him to hatred, ridicule, or
contempt. A private individual may bring an action to recover
damages for the injury done to his character by such a publication ;
but the ground of the criminal proceeding is the public mischief
which libels are calculated to create in alienating the minds of
the people from religion and good morals, and rendering them
hostile to the Government and magistracy of the country, and,
where particular individuals are attacked, in causing such irrita-
tion in their minds as may induce them to commit a breach of
the public peace. (1 Russell on Crimes, p. 211, Ed. 1826.) It
appears to have been considered at one time that the remedies
by action and indictment for libels were co-extensive, and might
be regarded as upon the same footing, but this could formerly
only have been understood of cases where the libel, from its
nature and subject, inflicted a private injury, and not of those
eases in which the public only could be said to be affected by the
libel. Now, however, by the Act 11 Vic, No. 13, s. 10, it is
provided that on the trial of any indictment or information for
a defamatory libel, the truth of the matters charged may be
inquired into, if it be alleged by the defendant that it was for the
public benefit that the matters so charged should be pubUshed,
16
QUEENSLAND JUSTICE OF THE PEA.CE.
E. V. PoGH. and if he set forth the particular fact or facts by reason whereof
Lutv^Se J. it was for the pubUc benefit that the matters so charged should
be pubhshed. But this section does not apply to seditious
libels (R. V. Duffy, 2 Cox C.C. 45, Rose on Evidence, p. 655, Ed.,
1857) ; and, consequently, in pleading to the present information,
the defendant was restricted to the plea of " not guilty," under
which plea evidence is receivable to show either that he never
published the alleged libel, or that the matter contained in- it is
not seditious, and was justified by the occasion on which it was
published. The intention may be collected from the libel,
unless the mode of pubUcation, or other circumstances, explain
it, and the pubhsher must be presumed to intend what the publi-
cation is Ukely to produce, so that if it is likely to excite sedition,
he must be presumed to have intended it to have that effect.
(Pex V. Burdett, 4 B. & A. 95).
Gentlemen, there can be no doubt that an information may be
supported for the pubUcation of a false, scandalous, and malicious
libel on the Legislative Council or the Legislative Assembly of this
colony. The two Houses of Legislature have very important
functions to discharge, and are on that account entitled to con-
sideration and respect. Not only do they assist in the making of
the laws by which we are governed, but they form the grand
inquest of the colony ; and, by a recent colonial enactment (25
Vic, No. 7), extensive powers, which did not belong to them at
common law, have been conferred on them in order that their
deUberations may be carried on in perfect tranquility and with
greater efficacy than before. The utmost freedom of debate
is allowed, and any member of either house may say within its
walls whatever he pleases of any person not being a member,
without being responsible, either civilly or criminally, for the
consequences. No doubt this privilege may be abused, but no
human institution is perfect. Unfortunately, experience teaches
us that men whom neither nature nor education have fitted for
the position, occasionally find their way into Colonial Legislatures,
and even into the Imperial Parliament. Men of this stamp,
sometimes from mere thoughtlessness, sometimes from the
working of an ill regulated mind, indulge themselves by scurrilous
attacks upon public and private character, and knowing they
have, to quote the language of Mr. Justice Coleridge {Stockdale v.
Hansard, 9 Ad. and Ell. 242) a legal monopoly in slander, are apt
to make the most of the commodity. For all this there is n"
redress, save in the expression of public opinion, and public opinion
CRIMINAL REPORTS, 1860-1907. 17
generally finds a channel for expression in the public press. The ^' ''•^<*°-
privileged slanderer is not protected from public criticism, pro- Lutwyohe J.
vided the criticism be fair and honest. And this rule applies
not merely to an individual member of either house, but to each
house and both houses collectively.
I have said that the Legislature is a grand inquest of the colony.
If, however, it should proceed without inquiry — if, while acting
in a qiiasi judicial manner, it should acscept surmises and insinua-
tions as proofs, and deal with suspicions as conclusive evidence
— a public writer would be justified in commenting upon such
conduct with freedom, and even with severity. " I think it
quite right," says Lord Chief Baron Pollock, in Gathercole v.
Miall (15 M. & W. 332), " that all matters that are entirely of a
public nature, conduct of Ministers, conduct of Judges, the
proceedings of all persons who are responsible to the pubhc at
large, are deemed to be pubhc property, and that aU bona fide
and honest remarks upon such persons and their conduct may
be made with perfect freedom and without being questioned too
nicely for either truth or justice." In the same case, Mr. Baron
Alderson observes (p. 338), " It seems there is a distinction,
although I must say I reaUy can hardly tell what the Hmits of it
are, between the comments on a man's public conduct and upon
his private conduct. I can understand that you have a right
to comment on the public acts of a Minister, upon the public
acts of a general, upon the public judgment of a judge, upon the
public skill of an actor — I can understand that ; but I do not
know where the limit can be drawn distinctly between where the
comment is to cease, as being applied solely to a man's conduct,
and where it is to begin, as applicable to his private character ;
because, although it is quite competent for a person to speak
of a judgment of a judge as being an extremely erroneous and
foolish one (and, no doubt, comments of that sort have a great
tendency to make persons careful of what they say) ; although
it is perfectly competent for persons to say of an actor that he is a
remarkably bad actor, and ought not to be permitted to perform
such and such parts so ill ; yet you ought not to be allowed to
say of an actor that he has disgraced himself in private life,
nor to say of a judge or Minister that he has committed felony,
or anything of that description which is no way connected with
•iis public conduct or pubhc judgment." And, therefore, gentle-
men, if any pubhc writer, or speaker at a pubhc meeting, should
comment, as he has a perfect right to do, on the proceedings
18
QUEENSLAND JUSTICE OP THE PEACE.
E. V. Pdqh.
Lutwyche J.
of either house of the legislature, or on the conduct of members of
either house, he must confine his remarks to their behaviour as
public bodies and pubho men. He would not be justified, for
instance, in saying of one member that he was a murderer (see
Harwood v. Sir J. Astley, 1 B. & P. N.R. 47), or of another, that he
was an adulterer, a gambler, and a drunkard ; or of a third, that
he was a griping landlord and a tyrannical master to his servants.
By making remarks Uke these he would overstep the boundaries
of legitimate criticism, although he might think he had good
reason for beUeving that what he was saying was true. But
the law wiU protect any man in making comment, however
strongly worded, on the public conduct of pubhc bodies and public
men, if those comments be made in good faith and in honest
spirit.
Gentlemen, I have made those observations because it seems to
me that they are much needed at the present juncture. I expected
that the Attorney-General would have filed an information against
the defendant for a scandalous libel reflecting on the Legislative
Council, and, as I have already intimated, there is no doubt that
the publication of such a Ubel, if proved to the satisfaction of a
jury, would subject the offender to severe penalties. It is quite
true that in the mother country prosecutions of this kind have
fallen into disuse. The last case which I have been able to find is
in R. V. Reeves (Peake's Addl. Cases, 84, Ed., 1796), about 65
years ago, in which the prosecution was instituted by the Attorney-
General, in consequence of a resolution of the House of Commons,
declaring a pamphlet published by the defendant to be a libel.
The Imperial Parhament has now no need of prosecution for libels
to support its character and dignity, although they were occa-
sionally instituted in more arbitrary times. Still, the right of
prosecution exists, and if the Legislative Council of this colony
deems it expedient to resort to such proceedings, it will be the duty
of this Court to give them full effect. They must, however, be
commenced in some other way than by an information ex officio.
The usual objects of an information ex officio, are properly such
enormous misdemeanours as peculiarly tend to disturb or endanger
the Queen's Government, or to molest or affront her in the regular
discharge of her royal functions, such as a seditious or blasphemous
libel or words, seditious riots not amounting to high treason, libels
upon the Queen's ministers, the judges or other high officers,
reflecting upon their conduct in the execution of their official
duties, obstructing such officers in the execution of their official
CRIMINAL REPORTS, 1860-1907. 19
duties, and the like (Arch. PI. and Evid. 95, Ed. 1856). The ^- ''_Pcgh.
Attorney-General appears to have been alive to this difficulty, Lutwyche J.
and, therefore, while complying with the request of the Legis-
lative Council to prosecute the publisher of the Courier for a
libel, he has filed an information, not for the publication of a
scandalous but of a seditious libel. By so doing, however, he has
fallen into a graver error than he would have committed if he
had filed an information ex officio against the defendant for the
publication of a scandalous libel on the Legislative Council.
In the latter case I should have been prepared to reserve (under
the Act 13 Vic, No. 8, s. 1) the point about the form of the
information, and the case could then have gone to the jury on its
merits. And, gentlemen, if this course had been taken, I might
very fitly have adopted, as a portion of my charge to you, a
passage from the speech delivered by Mr. Erskine (afterwards
Lord Chancellor) in the case of The King v. Stockdale (22 Howell's
State Trials, 238), to which the Attorney-General has to-day
called the attention of the Court. The defendant in that case
was prosecuted for a Ubel upon the House of Commons by pub-
lishing a review of the charges made by the House of Commons
against Warren Hastings, formerly Governor of India, and
whereby he was impeached of high crimes and misdemeanours.
The review was in fact a defence of the conduct of Warren Hastings,
and, in answering the charge of Ubel against Stockdale, his
counsel, Mr. Erskine, used these memorable words : — " If, after
the performance of this duty (i.e. the reading of the review), you
can return here, and with clear consciences pronounce upon your
oaths that the impression made upon you by these pages is that
the author wrote them with the wicked, seditious, and corrupt
intentions charged by the information, you have then my full
permission to find the defendant guilty. But if, on the other
hand, the general tenor of the composition shall impress you
with respect for the author, and point him out to you as a man,
mistaken, perhaps, himself, but not seeking to deceive others ;
if every line of the work shall present to you an intelligent mind
glowing with a Christian compassion towards a fellow man whom
he believed to be innocent, and with a patriot's zeal for the liberty
of his country, which he considered wounded through the sides
of an oppressed fellow citizen ; if this shall be the impression
on your consciences and understanding when you are called upon
to deliver your verdict, then hear from me that you not only
work private injustice, but break up the press of England, and
20 QUEENSLAND JUSTICE OF THE PEACE.
R. V. Pnoa. surrender her rights and liberties for ever, if you convict the
Lutwyohe J. defendant."
These words, gentlemen, with a few verbal alterations which will
easily suggest themselves to your mind, would have appropriately
formed a portion of my charge to you if the defendant in this
case had been indicted for the publication of a false, scandalous,
and malicious libel. But the information charges the pubHcation
of a seditious Ubel, and I am bound to tell you that, in point of
law, no seditious Ubel can be published of and concerning the
Legislative Council of this colony. What, gentlemen, is sedition ?
It is defined to be a factious commotion of the people, or a.
tumultuous assembly of men rising in opposition to law or the
administration of justice, and in disturbance of pubUc peace
(Webster's Diet.). The precedents for seditious libels and words
always charge an intent to stir up and excite discontents and
seditions among Her Majesty's subjects, or to excite them to
insurrections, riots, and breaches of the peace ; and if this be the
language of the precedents, it shows what the law is, for pleading is
the language of the law. Such an intent must be alleged and
proved before any man can be convicted of the pubUcation of a
seditious libel. Does the present information charge any such
intent ? It does not. It charges, indeed, an intent to bring
the Legislative Council into hatred and contempt with " the
subjects of the colony " — a clumsy and inaccurate expression —
but such an intent, even if carried into execution, would not
amount to sedition at common law. It is said by a learned
writer on the law of libel (Starkey on Libel, 535), that the same
policy which prohibits seditious comments on the King's conduct
and government, extends, on the same grounds, to similar reflec-
tions on the proceedings of the two Houses of ParUament. With
great respect for the authority of that distinguished lawyer,
I yet entertain strong doubts whether even the two Houses
of the Imperial ParUament had power, at common law, to direct
a prosecution for a seditious Ubel on either of them. The only
two cases cited by the Attorney-General to show that the House
of Commons had an inherent power to direct a prosecution
for seditious libels were R. v. Almon (20 Howell's State Trials,
803), and R. v. Stockdale already referred to. In the former
case the defendant's offence was the publication of " Junius's
Letter to the King," tied the information contained two counts,
the first charging a seditious pubUcation against the King, his
ministers, and the House of Commons, and the second charging
CEIMINAL REPORTS, 1860-1907. 21
a seditious publication against the House of Commons. The ^^ "• ^^°^-
defendant was convicted, and, as it was at that time considered Lut^^e J.
by all lawyers that an indictment might be sustained if one
offence known to the law were duly set forth in it, I can easily
understand why the counsel for the defendant did not take
any steps to arrest the judgment on the ground that the second
count of the information was bad. It is now settled, however,
by a comparatively recent decision of the House of Lords
{O'Connell v. The Queen, 11 CI. & F., 155), that if there be one bad
count in an indictment, and a general verdict of guilty be taken
on all the counts, the judgment must be arrested. In Stockdale's
case the defendant was acquitted, and no opportunity, therefore,
was afforded for testing the validity of the information.
These two cases are the only precedents to show what the
practice of the House of Commons has been ; but, as Lord Denman
observes in Stockdale v. Hansard (9 Ad. and E. 155)—" The
practice of a ruling power in the state is but a feeble proof of its
legality." And the doubts which I have expressed are greatly
fortified by the subsequent passing of a statute (60 Geo. III.
and 1 Geo. IV., c. 8) containing provisions which would have been
unnecessary if the House of Commons had, at common law, the
power which was claimed for them. That Act, which was passed
in times of great political commotion — about the period of what
are termed the Manchester Massacres and the Cato Street Con-
spiracy— enacted that a hbel tending to bring into hatred or
contempt either House of Parliament was a seditious libel. The
enactment, however, has remained a dead letter on the statute
book ; but it is quite clear that its operation was intended to
be confined to the two Houses of the Imperial Parliament, and
iad no reference to any existing colonial legislature, to say
nothing of a legislature which was not created till forty years
afterwards. And, whether the Imperial Parliament possessed at
common law the power of prosecuting for a seditious libel or not,
it is now well settled that the law and custom of Parliament,
under which such a power might have been claimed and exercised,
applies exclusively to the House of Lords and House of Commons
in England. (Fenton v. Hampton, 11 Moo. P.C. Cas. 347.) The
law and custom of Parliament is founded on precedents and
immemorial usage, under cover of which a ruling power in the
state " has committed many acts which posterity has unequivo-
cally condemned." By the creation of a local legislature, such
powers only are conferred upon it as are reaonably necessary for
22 QUEENSLAND JUSTICE OF THE PEACE.
B. V. PnoH. the proper exercise of its functions and duties (Kielley v. Carson, 4
Lutwyche J. Moo. P.O. Gas. 63). We owe allegiance to the Queen and obedi-
ence to the lawful commands of the Queen's Government ; but
the Legislature of Queensland forms no part of the Government,
Theoretically, as well as practically, the Legislature and the
Executive are separate bodies with distinct functions, and any
attempt to amalgamate them would only result in confusion and
disorder.
The objection to the sufficiency of the information appears on
the record, and the defendant may take advantage of it, either
by a motion in arrest of judgment, or by a special case under the
Act 13 Vic, No. 8. As he has pleaded to the information, it wifl
now be for you, gentlemen, to say whether the defendant haa
published a seditious libel, or whether you think that the article
which was published in the Courier on 30th of July was justified by
the occasion of its pubHcation. I have already said that in point
of law a seditious libel cannot be published of and concerning the
Legislative Council, though a scandalous libel may ; and you are
to say whether you will adopt my opinion of a seditious libel or
not ; and, unless you are satisfied that I am wrong, you will
take the law from me. In giving you, gentlemen, this direction,
I follow the precise terms of a direction given by a very learned
judge in a similar case (Rex v. Burdett, 4 B. & A. 95), and which
direction was considered by the Court of King's Bench to be a.
correct mode of leaving the question to the jury under 32 Geo. III.,
c. 60 (Mr. Fox's Libel Act). You will now, gentlemen, be pleased
to consider your verdict.
Verdict :— " Not guilty."
Solicitors for defendant : Lilley ds Garrick.
CRIMINAL REPORTS, 1860-1907. 23
[In Banco.]
R. V. BENNETT.
[1 S.C.R. 109,— Kote.— See now s. 427 of Criminal Code. 29 Vic, No. 6, s. 94,
mentioned in footnote, is repealed.]
7 cfc 8 Geo. IV., c. 29, s. 5Z— False pretences—'' Chattel "—Credit. 1863.
21st August.
Bread, meat, drink, and refreshments are " chattels " within the meaning of
7 & 8 Geo. IV., c. 29, s. 53.* C<'c'^'« C? ■'■
Ceown Case reserved by Lutwyche J.
Bennett was charged at the Ipswich Assizes with having
obtained " bread, meat, drink, and refreshments " from one
Jackson Curry by a false pretence. He was found guilty and
sentenced, but Lutwyche J. reserved for the opinion of the Court
in Banco the question whether " bread, meat, drink, and refresh-
ments," as charged in the information, were chattels within the
meaning of 7 & 8 Geo. IV., c. 29, s. 53.*
Blakeney, for the prisoner, cited R. v. Gardner (25 L.J., M.C.,
100) ; R. V. Kenrick (5 Q.B. 49) ; R. v. Crossley (2 Moo. & R. 17).
The Court answered the question in the af&rmative, and affirmed
the conviction.
Pring A.G. begged the leave of the Court to say that many
cases came before him, as grand jury of the colony, similar to
this ; and he believed in this the real question was that credit
had been obtained from Jackson Curry.
The Court stated they were of opinion that, from the case as
stated, even if credit had been obtained, the chattels had also
been obtained, and that question would not affect the present
case.
* 7 & 8 Geo. IV., c. 29, a. 53. And whereas a failure of justice frequently
arises from the subtle distinction between larceny and fraud for remedy thereof
be it enacted that if any person shall by any false pretence obtain from any
other person any chattel money or valuable security with intent to cheat or
defraud any person of the same every such offender shall be guilty of a misde-
meanour and being convicted thereof shall be liable at the discretion of the
court to be transported beyond the seas for the term of seven years or to suffer
such other punishment by fine or imprisonment or by both as the Court shall
award. Provided always that if upon the trial of any person indicted for such
misdemeanour it shall be proved that he obtained the property in question in any
such manner as to amount in law to larceny he shall not by reason thereof be
entitled to be acquitted of such misdemeanour and no such indictment shall be
removable by certiorari and no person tried for such misdemeanour shall be
liable to be afterwards prosecuted for larceny upon the same facts. — Pring's
Stat., p. 344. (But see now 29 Vic, No. 6, a. 94.)
Lutu-yche J.
24
QUEENSLAND JUSTICE OF THE PEACE.
R. V. COLLINS.
[1 S.C.R. 112.— Note.— See ss. 571 and 596 ol Criminal Code.]
1864. Information — Objection to — Time for objection — Commission of
SUtjuly. Crown Prosecutor.
Lutwyche J. A prisoner, arrainged on a charge o£ murder, pleaded not guilty His counsel
then took objection to the prisoner's trial on the information filed against him,
on the ground that it was signed by a Crown Prosecutor who was not acting under
a valid commission.
Held, that the objection was taken too late, as the prisoner had already pleaded
over.
Tbial of Michael Collins at the Toowoomba Assizes on a charge
of murder.
Blakeney, for the prisoner.
Prisoner, who was indicted for murder, on his arraignment,
pleaded not guilty.
Blakeney took a preliminary objection to the prisoner's being
tried on the information to which he had pleaded, as it had
been filed by the Crown Prosecutor, Mr. Gore-Jones, claiming
to act under a valid commission from the Governor, whereas the
commission was not dated when issued, and the date was only
put in by the Attorney-General during the assizes.
Lutwyche J. was of opinion that the objection had been taken
too late, as the prisoner had already pleaded over.
1865.
19th April.
Cockle C.J.
Lutwyche J.
[In Banco.]
R. r. NUGENT.
[1 S.C.R. 135 ; 7 Q.L.J. N.C. 102.— Note.— See now s. 391 of Criminal Code.]
Larceny — Absolute and special property — Felonious intent.
N. was charged with stealing and receiving two kegs of brandy, seized by
K., a sergeant of the poUce, in the execution of his duty. The jury found as a
fact that N. intended to deprive K. of his whole property in the goods, but had
taken them for the benefit of the former owner.
Hdd, that on those facts a conviction of larceny could not be sustained.
R. V. Knight (2 East P. C. 510), foUowed.
Crown Case reserved by Cockle C.J. on the trial of Nugent
at Rockhampton, on an information containing two counts,
charging him with steaUng and receiving two kegs of brandy
CRIMINAL REPOETS, 1860-1907.
25
which a sergeant in the gold escort of poUce had seized in the B" "• Wugent.
execution of his duty, and which, subject to such seizure and its
results, were the property of Smith.
In answer to questions put by the learned Judge, the jury found
the prisoner intended to deprive Kelly of his whole property in
the goods, and that he took them for the benefit of Smith, being
aware of a lawful seizure by Kelly, and that the latter had a
right to the goods as against Smith.
The prisoner was convicted on both counts and sentenced.
The question reserved for the Court was whether, on the facts
so found, a larceny had been committed.
PrifUj A.G., for the Crown, cited R. v. Privett (1 Den. 193),
B. V. Jones (lb. 188).
Cockle C.J. : In E. v. Knight (2 East. P.C. 510), where un- Cockle C J.
customed goods were seized by the prisoners with intent to re-
take them on behalf of their former owner, the presumption of
the felonious intention was rebutted on the finding of the jury.
In R. V. Privett there was an absolute ownership. In R. v.
Knight the property was special. The two cases are distinguish-
able from the one now before the Court, in which there was no
absolute property. We follow R. v. Knight, and avoid the
judgment.
Conviction quashed.
[In Banco.]
R. V. LEWIS.
[1 S.C.R. 138. — Note. — See now s. 619 ol Criminal Code.]
Crown case reserved — Crown prosecutor — Right of reply — District
Court.
The Crown Prosecutor in the Supreme Court has a right to reply, even though
the prisoner caE no evidence.
Qucere whether the same rights exist under The District Courts Act.
Cbown Case reserved by Ltjtwyche J.
The prisoner was tried at the Criminal Sittings of the Supreme
Court at Rockhampton, on the 30th September, 1865, before his
Honor Mr. Justice Lutwyche, on a charge of horse steahng. No
evidence was called for the defence. Bramston, Crown Prosecutor,
claimed a right to reply on the part of the Crown. The learned
1865.
7th December.
Cockle G.J.
Lutwyche J.
26 QUEENSLAND JUSTICE OP THE PEACE.
R. .;^Lewis. Judge allowed the reply, but reserved, for the consideration of the
Full Court, the point whether he was right in allowing such
reply. The prisoner was convicted, and sentenced to one year's
imprisonment with hard labour.
Lilley A.G., in support of the right, referred to 7 C. & P., 676,
where it was stated that, at a meeting of the Judges, a discussion
took place as to certain points likely to occur at the assizes, in
consequence of the recent Act allowing prisoners indicted for
felony to make full defence by counsel. The course of practice
as to the right of reply by the Crown which it was thought most
advisable to adopt, was as follows : — In cases of pubUc prosecu-
tion for felony, instituted by the Crown, the law officers of the
Crown, and those who represent them, are, in strictness, entitled
to the reply, although no evidence is produced on the part of
the prisoner.
The Court were of opinion that Mr. Bramston, being duly
authorised to represent the Attorney-General, had the same
right as the Attorney-General ; but that it must be understood
that they gave no opinion as to whether the same rights extended
to Crown Prosecutors under The District Courts Act.
1866.
5th Septeviber.
Cockle G.J.
Lutwyche J.
[In Banco.]
REGINA V. ATTWOOD.
[1 S.C.R. 146.— Note See ss. 567 and 568 ol Criminal Code.]
Information — Counts for felony and misdemeanour — Amendment
refused — Plea.
An information contained a count for felony, with a count for a misdemeanour.
Leave to amend was refused. The accused pleaded, and no evidence was offered
on the felony, and the prisoner was convicted of the misdemeanour.
Held, that the conviction as to the misdemeanour must be sustained.
B. V. Ferguson (27 L.J. M.C. 61) followed.
Cbown Case reserved by the Judge of the MetropoHtan District
Court, at Brisbane.
The prisoner was tried, on the 14th August, on an information
charging him with obtaining goods under false pretences, by utter-
ing a forged cheque ; and also with feloniously stealing the said
goods. At the trial, objection was taken to the indictment, and
leave to amend, by striking out the count for the felony, was
CRIMINAL REPORTS, 1860-1907.
27
refused. The prisoner pleaded, and a verdict of guilty was found
on the first count, and sentence passed, the learned Judge reserv-
ing, however, the question whether the conviction could, under
the circumstances, be sustained.
The prisoner in person.
Cockle C.J. delivered the judgment of the Court as follows : —
The occasions for amendments should be few, and should only
arise under circumstances which could not have been f-oreseen
by the draftsman if he had used reasonable foresight. It seems
that the learned Judge refused to exercise those powers of amend-
ment which, if they have the effect of leading to looseness of
criminal pleadings, and are made the means of casting on the
Judge the duty of the clerk of indictments, will prove of question-
able pubhc utility, and will probably lead to evils as great, at
least, as those they were intended to obviate. The information,
combining as it did, a count for felony with a count for mis-
demeanour, was improperly framed ; but we are not called upon
to discuss the mode of rectifying the irregularity : we have only
to consider the information as tried, and, in so doing, we presume
that the prosecutor elected, or was put to his election, and that
the prisoner was not embarassed in his defence. He made, as
it seems, no application to quash the information, but pleaded
to it ; and no evidence was offered on the count of felony. Under
these circumstances we think the conviction must be sustained,
and we are supported in this view by the analogous case (the
converse of the present) of E. v. Ferguson (24 L.J.M.C. 61, Dears
C.C. 427), and we affirm the conviction accordingly.
BEaiNA V.
AiTwooi).
[In Banco.]
REGINA V. HENNESSY.
[1 S.C.R. 147 Note. — See s. 619 of Criminal Code. Case referred to in R. v.
Walsh and Bunting (1902, S.R.Q. 6, at 8.]
Crown Prosecutor — District Court — Right of reply where prisoner
calls no evidence.
No counsel, excepting the Attorney-General, on behalf of the Crown, or a
counsel representing the Attorney-General and so acting, can reply, as of right,
on the defence of a prisoner who adduces no evidence.
Crown Case reserved by Sheppard D.C.J.
1866.
5th September.
Cockle C.J.
Lutwyche J.
28
QUEENSLAND JUSTICE OF THE PEACE.
Begina cj.
Heknesst.
Cockle C.J.
The prisoners were tried in the District Court at Brisbane, on
13th June, 1866, on an information preferred by the Crown
Prosecutor for the Metropolitan District, on a charge of horse
stealing. No witnesses were called or examined for the prisoners,
but on the conclusion of the case for the Crown, their advocate
addressed the jury. At the close of his address, the Crown
Prosecutor claimed a reply, which was objected to by the prisoners'
advocate, no witnesses having been examined for the defence.
The right having been insisted upon, the learned Judge allowed
it ; but, on the appHcation of the prisoners' advocate, reserved
the question for the consideration of the Supreme Court. The
prisoners were convicted, and each sentenced to two years'
imprisonment with hard labour.
Qore Jones, for the Crown.
Murphy, for the prisoners.
Cockle C.J. : No counsel, excepting the Attorney-General, on
behalf of the Crown, or a counsel representing the Attorney-
General and so acting, can reply as of right, on the defence of a
prisoner who adduces no evidence. This is a rule of law regulating
practice, and not a mere matter of practice depending on the
arbitrary discretion of judges. Whether the rule be inflexible is a
point we need not enter upon, for the case suggests no special
circumstance occasioning a departure from the general rule.
The case does not state, and we cannot presume that the District
Court Crown Prosecutor represented or ever assumed to represent,
the Attorney-General. It would, perhaps, have been better if the
commission under which the Crown Prosecutor had acted had
been set out, but we do not think it necessary to send the case
back to be re-stated ; for having been furnished by direction
of the Attorney-General with copies of the commission, certified
by our Registrar's clerk, we cannot see that its contents would
lead to any substantial modification of the case. It may he
presumed, then, upon the case as stated, that the right of the
District Prosecutor to reply on the defence of prisoners on whose
behalf no witnesses were examined, arose as a question of law on
their trial. It may be further presumed that this right, which
was insisted upon, was held to inhere in him simply as Crown
Prosecutor, and in virtue of his office only. On these presumptions,
which arise upon the case as stated, we think that the decision
was wrong ; and, being of opinion, that a question of law which
arose on the trial was wrongly decided, we avoid the conviction,
and order all necessary and proper entries to be made accordingly.
CRIMINAL REPOETS, 1860-1907.
29
LuTWYCHE J. : The practice of the Court is the law of the
Court, and very great injustice might be occasioned by a departure
on the part of the judge from long established usage. For
instance, he might refuse the prisoner permission to cross-examine
the witnesses for the Crown, or deny him the privilege conferred
upon him by statute of being heard in his defence by counsel.
These weU-known legal rights would be taken away from him,
yet no record of it could be preserved, and unless we had the
power of determining such questions of law, the prisoner could
have no remedy.
Regina v.
Hennesst.
Lutwyohe J.
R. V. GRIFFIN (No. 1).
[1 S.C.R. 176.]
Criminal law — Murder — Evidence — Other felonies — A dmissihility
of motive — Res gestae.
On the trial of a prisoner for murder, evidence is admissible of other felonies
committed by him where they prove a motive for the commission of the crime
or form part of the res gestae.
Ceowk case reserved by Lutwyche J., at the Rockhampton
Assizes, held on March 16th, 1868.
The prisoner, Thomas John Griffin, was indicted for the wilful
murder of John Power and Patrick Cahill, at the Mackenzie
River, on the 6th November, 1867. At the trial, the Attorney-
General, who prosecuted on behalf of the Crown, in opening the
case, stated that the prisoner, who had been Police Magistrate
and Gold Commissioner at Clermont, had received in that capacity
from certain Chinamen various sums of money, amounting to
£252, to be forwarded to Rockhampton ; that he arrived in
Rockhampton on the 19th of October, 1867, and was immediately
applied to by the Chinamen, and by others on their behalf, for
the money, but did not pay them then ; that the deceased troopers
were, on the 29th October, members of the Clermont gold escort ;
that on Tuesday, 29th October, the prisoner sent Power, one of
the deceased, from the camp, about four miles from Rockhampton,
to the bank for certain money to be conveyed to Clermont, and
that Power received from the bank four parcels, each containing
1,000 £1 notes ; that Power returned to the camp the same
evening without any money or parcels ; that prisoner obtained
the money from Power when he got out of town, and that the
1868.
12th May.
Cockle C.J.
Lutwyche J.
80 QUEENSLAND JUSTICE OF THE PEACE.
B. V. GKirFiN money remained in his possession till Friday, the 1st of November ;
*^!li'' that on Wednesday, the 30th October, he met the Chinamen
before referred to at the Club in Rookhampton, and repaid them
the money he had received from them at Clermont in £1 notes
which had been among those delivered to Power on the previous
day by the bank ; that, on the 1st of November, the prisoner, at
the request of Power and Cahill, with whom he was about to
start on the road to Clermont, sealed up with his own seal in
a canvas bag the parcels of notes then in charge of the deceased ;
that the prisoner, having robbed the parcels, and having sealed
the bag, was apprehensive that on the arrival of the escort at
Clermont the robbery would be discovered and that he would be
accused ; and that to save himself he accompanied Power and
Cahill on the road as far as the Mackenzie River, and there
murdered them. Evidence was given at great length, tending
to prove that the prisoner, before leaving Rookhampton, had taken
some of the notes from the parcels. The whole of that evidence
was objected to by the prisoner's counsel, on the ground, among
others, that evidence of one felony was not admissible against a
prisoner charged with another distinct felony. The evidence was,
however, admitted ; but Lutwyche J., before whom the a,ction
was tried, reserved the point of the admissibility of such evidence
for the opinion of the Full Court.
The prisoner was convicted and sentenced to death.
McDevitt, Hely, and Grifjfith, for the prisoner. With regard to
the objections raised against the admissibility of the evidence, the
Court has to decide whether the evidence tending to prove the
abstraction of the notes was admissible, inasmuch as it was evi-
dence of a distinct felony from that with which the prisoner was
charged in the indictment on which he was tried. In considering
whether that evidence was properly received or not, it is neces-
sary to refer to the general rules of law as to the admission of
testimony to understand how far evidence can be received of
points not in issue before the Court. It has been laid down
that the general rule upon the subject, in criminal as well as
civil cases, is, that nothing should be given in evidence which
does not directly tend to prove or disprove the matter at issue
(Archbold's Criminal Practice, page 200). In criminal pro-
ceedings evidence must be confined to the point in issue. Where a
prisoner is charged with an offence, it is of the utmost importance
that the facts laid before the jury should consist exclusively of the
facts charged in the indictment. It is a general rule that the facts
CRIMINAL REPORTS, 1860-1907. 81
proved must be strictly relevant to the particular charge. It is
not allowable to show upon the trial on a particular indictment
that the prisoner has a disposition to commit the same kind of
offence as that for which he stands indicted (3 Russell on Crimes,
Book v., Cap. II., p. 279, s. 2). One of the chief objects of an
indictment being to afford distinct information to the prisoner
of the specific charge about to be brought against him, the ad-
mission of any evidence unconnected with that charge must
clearly be open to the serious objection of taking the prisoner
by surprise. No man can be called upon, or be bound at the
peril of life, liberty, fortune, or reputation, to answer at once, when
unprepared, for every action of his Ufe (Taylor on Evidence,
Vol. I., p. 303). The rule to which allusion has been made is
qualified by numerous exceptions (to which reference will briefly
be made) which the proper dispensation of justice requires ; but
the evidence which has been admitted does not come within any
of the exceptions. 1. The first exception is the inseparability
of the transaction. When the several felonies are so mixed up
as not to be separated without great inconvenience to the prosecu-
tor, evidence of aU will be admitted (3 Russell on Crimes, 285 ;
Rex V. Hinley, 2 M. & R. 524). Upon that first exception evidence
of the nature of that which has been allowed at this trial cannot
be admitted, unless the grounds for its admission are so strong,
so patent, and so urgent, as to override the proposition so clearly
laid down by the authorities quoted. 2. The next exception is
when the felonies are so connected as to form one entire trans-
action. Where several felonies are connected together and form
part of one entire transaction, evidence may be given on the
hearing of a charge of one of them to show the character of the
others (3 Russell, 281 ; Bex v. Ellis, 6 B. & C, 145 ; R. v. Birdseye,
4 C. & P. 386 ; Rex v. Wylie, 1 New Rep. S.C. 94 ; Taylor on
Evidence, p. 334). Evidence of the robbery which took place
several days, if not a week, before the crime with which the
prisoner was charged, if admitted, at all, should have been ad-
mitted on the ground that it formed part of one entire transaction.
In most cases in which such evidence has been admitted there
were felonies of the same character. 3. The third exception, to
ascertain the identity of the article stolen, does not bear much
upon the case. In cases in which it is necessary to identify
the articles stolen, evidence of felonies other than the one charged
in the indictment is admissible (3 Russell, p. 280). 4. The
fourth exception is to prove guilty knowledge. When it becomes
E. V. Gkiffin
(No. 1).
82 QUEENSLAND JUSTICE OF THE PEACE.
^ (No^Tr"' "lecessary to prove guilty knowledge on the part of the prisoner,
evidence of other felonies committed by him, though not charged
in the indictment, are admissible for that purpose (3 Russell, p.
287 ; Archbold, p. 201 ; Taylor, p. 341 ; Eex v. Oddy, 2 Den.
C.C. 264) . Before the Court can allow the evidence of the robbery,
they must decide whether evidence of the possession of the
stolen property by the prisoner in Rockhampton was evidence
of his murder of the troopers some days after. 5. Evidence
of other felonies than that charged in the indictment may some-
times be admitted to prove guilty intent, but the possession
of the stolen notes does not tend to prove that the prisoner
intended to murder the troopers, and therefore the evidence is
inadmissible. (3 Russell, page 288. Taylor, page 341). Such
evidence is usually admitted when there is a question of malice,
but the evidence was not offered upon that ground in the present
case, and there was no direct evidence to support such an assertion.
LuTWYCHE J. : Does not the evidence tend to show pre-
meditation or deUberation on the part of the prisoner ?
MacDevitt : Still evidence of premeditation is not admissible
unless it comes within some recognised exception to the rule, which
says that no evidence shall be given except that which goes directly
or indirectly to prove the guilt or innocence of the prisoner, and
evidence of malice prepense must have reference directly to the
act of murder. Even if the prisoner admitted that he had com-
mitted another felony, it could not be used as evidence against
him in the case he was being tried for. On the grounds men-
tioned the conviction cannot stand. He cited also R. v. Clewes
(4 C. & P. 221) ; R. v. Ellis (6 B. & C. 147) ; B. v. Oddy (2 Den.
C.C. 264) ; R. v. Butler (2 C. & K. 221) ; R. v. Geering (18 L.J.,
N.S., M.C. 215) ; R. v. Toke (Roscoe's Nisi Prius, 288).
Pring A.G. and Lilley Q.C., for the Crown.
Cockle C.J. : We will not trouble the learned counsel for the
Crown.
Pring A.G. : It might assist the Court if I refer to the cases of
R. V. Palmer (see Report in Wills on Circumstantial Evidence) in
which evidence of a forgery committed by the prisoner was given
in support of the charge of murder ; R. v. Courvoisier (9 C. & P-
362) ; R. V. Garner (3 F. & F. 681) ; and R. v. Dossett (2 C. & K.
306).
CRIMINAL REPORTS, 1860-1907.
33
Cockle C.J. : It is due to Mr. MacDevitt, who has zealously
and learnedly argued the case on behalf of the convicted prisoner,
that the Court should give reasons for the decision to which we
have now come. We fully assent to much, or the greater part,
of what has been energetically urged upon us by Mr. MacDevitt.
If evidence were tendered when a man is on his trial for one offence,
of his having been guilty of another offence, and if such evidence
were tendered for the purpose of showing that he was a man of
vicious disposition, and therefore Ukely to have committed the
offence for which he was tried, such evidence would be not merely
irrelevant, but inadmissible, and its admission would vitiate the
verdict. Supposing that, in the case of a man on his trial for one
offence, evidence is tendered to show that he had been reasonably
suspected of having committed another offence, and that he was
a man of bad reputation and character, and so the more Hkely to
have committed the first offence, such evidence would be clearly
inadmissible, and would also vitiate the verdict. The Court
will even go the length Mr. MacDevitt has gone, and say that if a
man were on his trial for one offence, and evidence were tendered to
show that he had admitted that he had perpetrated and committed
an offence Uke that for which he was being tried, and that he
had been tried, and that he had a strong predisposition to commit
the offence, then such evidence ought to be excluded, and if
admitted the verdict would be vitiated. But, supposing evidence
were tendered which, while inadmissible on account of some of
the reasons I have stated, was admissible on some other ground,
why then the single ground for admission would override aU the
grounds for exclusion, and the evidence must be admitted in the
case to be dealt with, according to the rules of law and evidence,
by the tribunal before which the man was being tried.
Now, is there any reason in the present case which will justify
the admission of evidence apparently so open to objection ? What
was the first enquiry made when the news of the crime was
published ? Why, what could have been the motive of the per-
petrator ? Surely no ordinary reasoning man would see in that
anything objectionable ; it is a question not only most natural,
but one the solution of which is most important for the purposes
of justice. Now, Mr. MacDevitt appeared to say that a motive
was not by that name included amongst the cases for exception
to the usual rule of exclusion, although he mentioned " intent "
as one of the exceptions. It is not necessary for the Court to
say, nor perhaps would it be very easy to point out the precise
c
B. V. Gbiffin
(No. 1).
Cockle, C.J.
34
QUEENSLAND JUSTICE OF THE PEACE.
R. I). Griffin
(No. 1).
Cockle C.J.
distinction between motive and intent, but I can see many cases
in which motive and intent have almost the same meaning. For
instance, a man is charged with shooting a man with intent to kill
him. What was his motive ? To kill this person ; why there is
his intent and motive. He shot at the man with intent to kill
him, and his motive in shooting was to kiU him. So that is
the possible distinction between the words motive and intent.
In the present case, assuming on the facts as stated, that there
was a robbery which had been committed prior to the commission
of the murder, can it be said that the result of the murder would
not be to render an enquiry into the circumstances of the robbery
more difficult, and that it would tend to baffle the researches of
justice into the commission of the robbery ? If such were the
result, would it, in the mind of the person who committed the
robbery, be an expected result of the murder ? The tribunal
'before whom the case is tried must say whether the person against
whom the evidence is offered would have sufficient intelUgence to
see that that might be the result, and, if they aimed at that
conclusion, he must be taken to have expected it. Did the
prisoner desire such a result ? It is not necessary for them to
say that he either expected it or desired it, but, if he expected it,
he might desire it, and that would constitute a possible motive,
which surely ought not to be excluded from a jury. It does not
foUow that the jury should be compelled to deem that motive
a sufficient one to induce them to act upon it and convict the
person accused. The Court has only to determine whether
the evidence should be admitted, and we think that aU motives
which might have actuated the accused person are fairly matter
to be laid before a jury, and it would be for them, in their own
common sense, to determine what weight to attach- to the cir-
cumstance. That, I think, being the case, the appeal must he
dismissed.
LutwyeheJ. LuTWYCHE J. : I agree -with the Chief Justice that the con-
viction must be affirmed. It appears to me that any act may he
given in evidence which would or might operate as a motive
upon the mind of any man. If it did so, it may be given in
evidence against the prisoner. The whole of the evidence which
was objected to seems to me to form part of the res gestae of the
case, and to be indivisibly connected one part with another, from
the very beginning, when the prisoner received the money from
the Chinamen at Clermont up to the commission of the robbery.
CRIMINAL REPORTS, 1860-1907.
35
Therefore that evidence contained facts which were brought
before a jury to show the motive for the commission of the
murder ; or, at any rate, facts which might have induced any other
man than the prisoner to commit the murder. When the robbery
was once committed we come to the circumstances attending
the murder, and we find that the bags were sealed at Power's
request by the prisoner. If another man, placed in the same
position as the prisoner, had committed the robbery, or was, or
might be, in fear of apprehension, surely then evidence of the same
facts might be given against the prisoner, not as furnishing an
adequate motive, but as furnishing some motive, for acting as
he did. The conviction must be affirmed.
Solicitor for prisoner : Rees Jones.
R. t). Gbiffin
(No. 1).
Lutwyohe J.
[1 S.C.R. 182.— Note.-
[In Banco.]
R. V. GRIFFIN (No. 2).
-29 Vic, Ko. 13, is repealed, see now s. 669 of Criminal Code,
to same effect as s. 51 of that Act.]
Mandamus — Circuit Court — Judge of Assize — Crown Case Reserved
— Amendment — Comment on Judge's summing up — Question
of fact — Criminal Practice Act of 1865 (29 Vic, No. 13),
ss. 48, 51.
Where a Judge of Assize has refused to state a point raised by counsel in a
Crown Case Reserved by him on other points, the proper time to bring the matter
before the Full Court is on the hearing of the Crown Case Reserved.
A comment made by the Judge in the course of summing up on the facts of
the case is not a pomt of law that can be reserved.
Qucere whether a mandamus will lie against a Jut^e of Assize.
Motion for a rule nisi for a. mandamus addressed to the Judge
of the Circuit Court, at Rockhampton, commanding him to state
a case for the consideration of the Full Court.
The prisoner Griffin had been convicted on a charge of murder,
and a Crown Case had been reserved, and judgment delivered
thereon as above (ante p. 33^.
All the other necessary facts appear in the argument of counsel
and the judgments of the learned Judge's.
1868.
15th May.
Cockle G.J.
Lutuiyche J.
MacDevitt and Griffith appeared to move for rule nisi.
36 QUEENSLAND JUSTICE OP THE PEACE.
^' (N^T™ Cockle C.J. ": The Judge of the last Circuit Court, at Rock-
— — hampton, has stated a case for the Full Court, and the Court,
after hearing it argued, has dismissed the appeal.
MacDevitt : The object of the present motion is to get the
learned Judge to state a case containing and embodying an
objection to his summing up.
Cockle C.J. : The Court had power under the original case, if
the matter had been suggested, to have remitted the case to the
learned Judge. That was the proper time to have applied. If
there was anything in the point the learned Judge would have
remembered it.
MacDevitt : I submit the learned Judge refused to embody the
objection in the special case submitted to the Full Court.
Cockle C.J. : Look at s. 51 of The Criminal Practice Act,
29 Vic, No. 13.
MacDevitt : I have read that section ; it says " The Judges,
when a case has been reserved for their opinion, shaU have power,
if they think fit, to cause the case or certificate to be sent back
for amendment, and thereupon the same shall be amended
accordingly, and judgment shall be delivered after it shall have
been amended." There could be no object in applying under that
section for an amendment of the special case, because the learned
Judge had already refused to embody the objection in it. Section
48 of the same Act, however, lays it down that " When any persoa
shall have been convicted of any treason, felony, or misdeamenour,
before any Court of Criminal Jurisdiction within the colony, the
Judge, or Chairman, or Justices of the Peace, before whom the
case shall have been tried, shall, on the application of counsel,
made during the trial, or without such application, in his or their
own discretion, reserve any question or questions of law which
shall have arisen on the trial for the consideration of the Judges of
the Supreme Court, and thereupon shall have authority to respite
execution of the judgment on such conviction, or postpone the
judgment until such question or questions shall have been con-
sidered and decided." The learned Judge, at the trial, refused to
state a special case to the Full Court embodying the objection
taken at the trial, as he alleged it did not come within that section,
as it was not a point of law but of fact. That is the reason why
no application was made to the Court to send back the special
CEIMINAL EEPOETS, 1860-1907. 37
-case to the learned Judge who tried it, to embody that objection ^- ^<^^^^^^^
in it. He cited Ex parte Inhabitants of Jarvin (9 Dowl. 120) ; — !_
Tapping, p. 235.
LuTWYCHE J. : If the apphcation had been made when the
special case was being argued, and the Chief Justice had thought
it was a point which ought to be embodied in that case, I would
have embodied it, whatever my own opinion might be.
MacDemtt : I regret that that course has not been pursued.
It was distinctly understood that the learned Judge who tried the
«ase had consulted with the Chief Justice, and had determined that
the only point he would submit to the Full Court was the one which
has already been decided.
LuTWYCHE J. : I spoke to the Chief Justice about it, but did
not consult with him. I acted upon my own responsibility.
MacDevitt : The Circuit Court at Rockhampton is an inferior
Court to the Supreme Court, and it was the duty of the Judge
to have reserved any point of law raised in the course of the trial
for the consideration of the Full Court.
LuTWYCHE J. : The Circuit Court at Rockhampton is a superior
Court of Record. The presiding Judge at the trial was only bound
to reserve points of law, and not matters of fact, for the consider-
ation of the Full Court, and it rested with him to determine whether
the points raised were matters of law or fact. It is clear no action
can lie against the Judge of a Superior Court, except for refusing
to sign a bUl of exceptions. I would like to be shown some
authority to show that a mandamus can lie against the Judge of
a Superior Court.
MacDevitt : By The Criminal Practice Act of 1865, the Judge
who tries cases in this colony is put upon the same footing as
Justices of Quarter Sessions in England. It cannot be contended
that a mandamus will not he to a Justice of Quarter Sessions, or
other judges of inferior Courts trying criminal cases, and why
should it not be addressed to the Judges of courts of oyer and
terminer.
Cockle C.J. : You could attach the Judge if that were so.
MacDevitt : I rely principally on the fact that His Honour,
Mr. Justice Lutwyche, in summing up, told the jury " If the
prisoner did not commit the murder, who did ? This is a question
88
QUEENSLAND JUSTICE OF THE PEACE.
B V. Griffin
(No. 2).
Cockle C.J.
which you must answer for yourselves before you can give a,
verdict upon your consciences in this case." When the jury had
retired I objected to that ruling, and asked the learned Judge to
reserve it.
LuTWYCHE J. : That is quite correct, and I told you to sit down ;
that you were making comments upon my observations to the jury
upon a question of fact. It was not the thing upon such a sad and
solemn occasion to have an altercation with counsel ; and having
some tenderness, perhaps, for the inexperience of the three gentle-
men who were engaged in defending the prisoner, I said I would
take a note of the objection and speak to the Chief Justice about
it. I did both.
MacDevitt : I submit that in cases in which a cUent's life and
liberty are at stake, his counsel are justified in taking advantage
of every chance which the facts of the case and the law permit.
Cockle C.J. : In the first place the Court is not satisfied that
a mandamus wiU lie to a Judge of Assize, and therefore we will be
spared the painful notoriety of having been the first Court probably
to mandamtts one of its own Judges. In the second place, I think
that the proper time to have asked Mr. Justice Lutwyche to have
placed an objection upon the case would have been when the
Judges sat as a Court of Criminal Appeal to hear the case reserved,
because then we might, if we had thought fit, have caused the case
or certificate to be sent back for amendment. I have very grave
doubts whether a mandarnvs will lie in any case, because the Court
of Criminal Appeal is formed upon the model of the Court of
Appeal in England, which consisted of the Lord Chief Baron, the
two Chief Justices, and several other Judges. It may be some
satisfaction to Mr. MacDevitt to know that the Court can see very
\\ ell that even if the point had been before us when the special
case was signed before the Court of Criminal Appeal, we would
scarcely have invited the learned Judge who presided at the trial
to amend his case. A Judge's summing up must not be regarded
as consisting of a set of separate sentences, but must be taken as
a ^\hole. The part which has been objected to in the present
case might, under one aspect, appear a very strong way of putting
the matter to the jury ; but yet, if the whole charge were con-
sidered, it might be the very best way of putting to the jury the
true point which they had to decide. It was not a point of law
that is wished to be reserved, but a criticism or comment on the
learned Judge's summing up. I think the motion ought to be
refused.
CKIMINAL REPORTS, 1860-1907.
39
LuTWYCHE J. : The motion is made too late. A suggestion
should have been made when the special case was being heard, for
that would have been the time to have inserted the proposed
amendment if the Court had thought such an amendment proper
and desirable. I also think the point which was said to be a point
of law was simply a comment made by the Judge in the course of
his summing up on the facts in the case. As the Chief Justice
has said, we must not look at isolated sentences, but at the whole
of the summing up, in order to see the sense in which the words
were used. They were used by me to convey to the jury my strong
impression that the prisoner was guilty. It was only another form
of saying " Nobody but the prisoner could have committed the
deed."
[His Honour then read a considerable portion of his summing up
from the Northern Argus, which contained, he said, the best report
of his charge to the jury,]
I very much regret that the point has been brought before the
Court, for it is very irregular. When I was in New South Wales
the practice of relying upon a Judge's summing up prevailed a
good deal too much in the Supreme Court. So far as Ues in my
power, I will take care to check that practice up here. 1 think the.
motion must be dismissed.
Solicitor for prisoner ; Rees Jones.
E. V. Gkiffin
(No. 2);
Lutwyche J.
[In Banco.]
R. V. PEARSON.
[2 S,C.R. 21,]
Criminal Law — Venire de novo — Affidavit of juror — New trial
refused.
On an application for a writ of venire facias de novo, on the ground of irregu-
larities in connection with the dehberationa of the jury on a criminal trial, Jield,
that an affidavit by one of the jurymen as to the actions of the jury after their
retirement from the Court could not be read upon such an application.
*B. V. Murphy (7 N.S.W. S.C.R. 24) doubted.
Application to make absolute a rule nisi for a writ of venire
facias de novo, and for a writ of certiorari.
George Pearson was arraigned before His Honour Judge Innes
and a common jury at Maryborough on the 7th August, 1868, on a
1868.
27th November.
Cockle C.J.
Lutwyche J,
*TbJB decision was reversed by the Privy Council (L.R. 2 P.O. 535).
40
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Pearson, charge of feloniously stealing two auriferous nuggets, valued at
£64, the property of George Smith, Pearson being a bailee.
The prisoner was found guilty, and sentenced to eighteen
months' imprisonment with hard labour in the Brisbane Gaol.
On the termination of the case, the jury were locked up in the
public Courthouse, and given in charge to the baihff of the Court.
The jury-room was occupied by another jury. Howard, one of
the jurymen, had siace stated that while the jury were locked
up ia the Courthouse, and considering their verdict, the police
entered the Courthouse with the prisoner Pearson and other
prisoners, and remained there during a portion of the time the
jury were deliberating. Upon the reopening of the Court, the
jury complained to the Judge of the intrusion of the police.
While the jury were locked up, the depositions, the notes of the
Crown Prosecutor and of the counsel for the prisoner, Roscoe's
Criminal Evidence, and other legal works, were in the Court,
and the jury had access to and read some of them.
Blake and Handy, for the prisoner, cited R. v. Murphy (7
N.S.W.R. 24), then under appeal to the Privy Council, Straker
V. Graham (4 M. & W. 721), Burgess v. Langley (1 D. & L. 21),
Harvey v. Hewitt (8 D.P.C. 598), B. v. Fowler (4 B. & Aid. 273),
B. V. Bertrand (L.R. 1 P.C. 520), Gould v. Oliver (2 M. & G. 288),
and read affidavits in corroboration of the facts.
Cockle C.J. Cockle C.J. : This appUcation must be refused, on the ground
that the evidence is technically insufficient and inadmissible. The
presumption to be drawn from the statement that notes and books
were lying on the Courthouse table is too faint to induce the
Court to grant the rule.
Lutwyche J. LuTWYCHB J. : It is quite clear from the authorities that the
affidavit of a juryman cannot be received as to what passed while
the jury were locked up in a private room, and that the statement
of a juror to another person of what passed in that private room
cannot be accepted. There is nothing, therefore, for the Court
to go upon. I consider this case is distinguishable from that
of B. V. Murphy. I do not see anything in the case to infer a
miscarriage of justice. I am not at all prepared to go the length
that the Full Court in New South Wales has gone in B. v. Murphy,
simply because the jury read the reports of the trial, for they read
them only during the first three days, and if they had fornied
any erroneous impression of the evidence, they could have been
corrected by the Judge in summing up.
Bule refused.
CBIMINAL EEPOETS, 1860-1907.
41
[In Banco ]
R. V. WILKIE.
[2 S.C.R. 33.— Note.— 29 Vic, No. 6, is repealed. See s. 398 v. of Criminal Code.
As to receiving stolen property, see now s. 433 of Criminal Code.]
Criminal Law — Embezzlement — Larceny Act of 1865 (29 Vic,
A'O. 6), ss. 73, 75, 76, 96 — Person in service of the Crown.
The word " fraudulently," in s. 75 of 29 Vic, No. 6, is to be applied to the
word " embezzle," which precedes it in the section, as well as to the words
" apply and dispose of" which follow.
Where a servant of the Crown has received from the Treasury moneys payable
to other persons, and there is no evidence that he received them by virtue of his
employment, he cannot be convicted of embezzlement of those moneys under
.8. 75 of the Larceny Act.
Crown Case Reserved by Lutwyche J.
The prisoner was indicted on an information under s. 75 of the
Larceny Act of 1865, charging him with three separate offences of
embezzlement and stealing, and a general verdict of guilty was
xeturned. The facts appear in the judgment. It was submitted
that the case for the Crown had failed in that the moneys men-
tioned in the information were the property of the person to whom
they were payable, and not of Her Majesty ; that ttere was no
■evidence of the prisoner having received the said moneys or having
■embezzled them ; that there was no evidence of the prisoner
having received the moneys by virtue of his employment ; that
there was no refusal by the prisoner to account for the moneys,
and that it, in fact, having been shown that the moneys had been
paid over, there was in law no embezzlement and no fraudulent
intention on the part of the prisoner. The learned Judge refused
to so direct the jury, but reserved the objections for the Full
•Court.
The prisoner was convicted and sentenced to three years penal
servitude.
Blake Q.C. and Grfflth, for the prisoner, referred to R. v. Moah
(Dears 626 ; 25 L.J., M.C., 66). The persons, to whom payments
were made, might have received them at the Treasury themselves.
The money must be in transit to the employer. R. v. Hockings
(1 Den. 584 ; 2 Russell, 449-50) ; R. v. Gill (Dears. 289) ; R. v.
Smith (R. & R. 516). • The receipt from the bank is receipt from
the Crown. R. v. Gorbutt (Dears & B. 166) ; R. v. Hodgson (3
■C. & P. 422) ; R. v. Evan Owen Jones (7 C. & P. 833) ; R. v.
Williams (7 C. & P. 338).
1869.
9th, lOlh
September.
Cockle C.J.
Lutwyche J.
42
QUEENSLAND JUSTICE OP THE PEACE.
R. V. WiLKiE. Pring Q.C., for the Crown : Section 75, refers as much to money
coming from the Treasury as to money going from the Treasury
entrusted to him by virtue of his employment.
Lutwyche J. LtrTWYCHE J. : I have now no hesitation in coming to the con-
clusion that the conviction was erroneous. I certainly thought,
at the trial, that the words of s. 73 of the Larceny Act, and those
of s. 75 so far as related to the offence of embezzlement, being,
different in phraseology, the Legislature might have intended
to apply a more restricted meaning than was formerly applied
to the word embezzlement. I am sorry that I had no oppor-
tunity at the trial of fortifjdng my judgment by a reference to
any of those cases just cited, for I was only referred to R. v. Moah.
I certainly think now that the word " embezzle " means fraudu-
lent and felonious embezzlement. I am more lead to that con-
clusion by a more careful consideration of the terms of s. 75,
I take it, therefore, that the Legislature meant to apply the
word " fraudulent " to the word embezzle, as well as to the
words " apply or dispose of ; " and the context seems to strengthea
that conclusion. Another clause of the Statute (s. 96) has been
pointed out to me by the Chief Justice — that as to the receiving
of stolen goods. The words are :
" Whosoever shall receive any chattel, money, valuable security or other
property whatsoever, the stealing, taking, extorting, obtaining, embezzling or
otherwise disposing whereof shall amount to a felony either at common law or
by virtue of this Act, knowing the same to have been feloniously taken, stolen,
shall be guilty of felony, and may be indicted an^ convicted as-
an accessory after the fact or for a substantive felony, and in the latter case,
whether the principal felon shall or shall not have been previously convicted or
shall or shall not be answerable to justice, and every such receiver howsoever
convicted shall be liable, at the discretion of the Court, to be kept in penal
servitude for any term not exceeding fourteen years, etc."
It cannot be intended that a simple receipt of any property, which
has been stolen, will make a man liable to be indicted as a receiver,
for, if so, a constable who takes stolen goods into his possession
may be indicted under s. 96. We must construe enactments
according to the meaning of terms which have obtained in the
law a certain definite meaning ; and I think I have been wrong
in the necessarily hasty view I took on the occasion of the trial.
I should have been glad to have received more assistance than
I did ; but, of course, a judge has to do the best he can at the
time. I was not freed from responsibility, if I did not get the
amount of assistance which I might fairly expect from the Bar,
CRIMINAL EEPOETS, 1860-1907.
43
In the Larceny Act a distinction between embezzlement and
larceny is carefuUy drawn. There is a distinct section (s. 75)
with reference to the offence of larceny by persons in the Queens-
land Civil Service and the PoUce, and another clause which
relates to embezzlement, and to a fraudulent application or
distribution of money ; and perhaps if the words " fraudulent
appUcation " had been followed in the information in this case,
the evidence might have supported it. But there would still
have remained the question of fraud, which I was asked to put
to the jury, and'thought it unnecessary to do so. I told the
jury it was quite sufficient, if they thought there had been a
wilful misappropriation of public money by the prisoner, and
declined to put that question to them. The main question in
this case turned upon that of embezzlement, and I certainly
think there has been no evidence of embezzlement, in the meaning
of that term that has been laid down, to go to the jury. The
prisoner received money from, the Treasury, representing the
Queen. He did not, as was the case with the prisoner whom I
tried at Ipswich in April last, intercept money on its way to the
Treasury ; but he received it from the Treasury, and, therefore,
if other facts would have supported the charge, he might have been
found guUty of larceny, if my attention had been called to the
fact that the evidence would support such charge. Had my
attention been so called, I might then have directed the jury
to find the prisoner guilty of larceny, not embezzlement. I
cannot complain that I was not told the offence, if anything,
amounted to larceny. I ought to have seen that for myself,
but I did not. The jury having found a general verdict of
guilty, the conviction must be quashed according to the authority
of R. V. Gorbutt (supra), even if the evidence would have sup-
ported a charge of larceny. Under all the circumsances, I am
clearly of opinion that the conviction was erroneous, and ought to
be quashed.
B. u. WiLKIE.
Lutwyche J.
Cockle C.J. : I concur.
Cockle C.J.
Conviction quashed.
44 QUEENSLAND JUSTICE OF THE PEACE.
R. V. ARCHIBALD.
[2 S.C.R. 47.— Note.— Footnote should read See 58 Vic., No. 23, s. 10 (Criminal
Law Amendment Act of 1894). As to confessions see also R. v. Many Many
(6 Q.L.J. 224, post) and MacNamara v. Edwards, Ex parte Edwards (1907,
S.R.Q. 9, post.]
1869. Crown Case Reserved — Voluntary confession — Evidence — 0§er of
7th December. j /-r j ■
'pardon — Caution .
1 iitiaiche J ^- '^^° ^^^ ^^^"^ arrested as an accessory before the fact to a murder was
informed by the lock-up keeper that there was a reward offered and a free
pardon, to any one but the murderer, to any person giving information which
would lead to the apprehension of the miirderer. A. said he had intended to
teU the Police Inspector what he knew on his arrest, and the lock-up keeper
repUed that he should have done so, as it would have been better for himself.
A. then, at his own request, saw the Police Inspector, and said he wished to
make a statement. The inspector then took A. before a magistrate, and both
the inspector and the magistrate warned A. that any statement made by liiin
might be given in evidence against him. A. then made a statement, and when
the same was about half completed the magistrate told him that the evidence
was not being received as Queen's Evidence. A. completed the statement.
Hdd that the statement was not induced by the o£Eer of reward or pardon,
and being voluntary was rightly admitted against the prisoner.*
R. V. Rosier (Phillips Ev., 414), approved.
R. V. BlacHbum (6 Cox C.C. 333) distinguished.
Crown Case Reserved by Mr. Justice Lutwyche, on the trial
of Alexander Archibald at the Rockhampton Circuit Court, in
October last, for being an accessory before the fact to the murder
of Patrick Halligan, by George Palmer and John Williams.
Pring A.G. And Griffith, for the Crown.
Blake Q.C. for the prisoner.
The case stated was as follows : — " In the course of the trial,
the Attorney-General tendered, on behalf of the Crown, a state-
ment made by the prisoner in the presence of a magistrate of
the territory, which statement was taken down in writing in the
presence of the magistrate and the prisoner, and was afterwards
read over to the prisoner and signed by him. An objection was
raised to the admissibility of this document, on the ground
that it was made after a promise had been given to the prisoner,
and while he was under arrest, but I over-ruled the objection,
and allowed the statement to go to a jury, reserving, at the
request of the prisoner's advocate, for the opinion of the Supreme
*See 58 Vic, No. 2, s. 10.
CRIMINAL REPORTS, 1860-1907. 45
Court, this question of law : Was the statement properly received ^- "• Arohibald.
in evidence or not ? On the night of the 12th May last, at a
pubUc meeting of the inhabitants of Rockhampton, held at the
Union Hotel Theatre, the Police Magistrate of Rockhampton
received a telegram purporting to have been despatched by the
Colonial Secretary, in which a reward of £300 was offered for any
information that would lead to the apprehension or conviction of
the murderer or murderers of Patrick Halligan, and a free pardon
to the accompUce not actually the murderer. It did not appear
that the prisoner, who was arrested the same night about 9 p.m.,
at the Lean Creek Hotel, three miles from Rockhampton, was
at the meeting ; but, after his arrest, and while he was in the
lock-up, he was told by the lock-up keeper that there was a
reward offered and a free pardon to any person not actually the
murderer. The prisoner said that he had a mind to tell Mr.
EUiott (Sub-inspector of PoUce) when he was arrested, and the
lock-up keeper replied that he should have done so, as it would
have been better for himself. The prisoner then said that he
would tell Mr. EUiott all that he knew about it. The prisoner
soon afterwards saw Mr. Elliott and said, " I was coming in to
tell you about it, but I was waiting until the meeting should be
over, and a reward offered, as I wished you to get the reward."
The prisoner next told Mr. Elliott that he wished to make a
statement. Mr. Elliott took the prisoner before Mr. Murray,
the Police Magistrate of Springsure, and Chief Inspector of PoUce
of the Northern District, and said to the prisoner : " Do you
know that he is a magistrate ? Do you wish to make a state-
ment ? " The prisoner said that he knew Mr. Murray, and that
he did wish to make a statement. Mr. ElUott said, "Whatever
you say will be taken down in writing, and given in evidence
against you." The prisoner said, " All right," or " Oh ! very
well," and Mr. Murray then repeated the caution, saying, " Now,
Archibald, be cautious what you say, as it will be taken down in
writing and may be used against you on your trial." The
prisoner said, " All right, I understand what I am about." Mr.
Murray, in giving his evidence, deposed that when the statement
was about half completed he told the prisoner to bear in mind
that the statement was not being accepted as Queen's Evidence,
and that the Judge would have to decide that question ; but
the Sergeant of the Police, who was engaged in reducing the
prisoner's statement into writing, deposed that he did not hear
Mr. Murray say anything about Queen's Evidence, and that it
46 QUEENSLAND JUSTICE OP THE PEACE.
E. V. Aechiealp. could not have been said without his hearing it. Nothing was
said either by or to the prisoner after he had been brought before
Mr. Murray about a pardon or a reward. The statement which
was given in evidence contained admissions tending strongly
to show the guilt of the prisoner, and he was found guilty and
sentenced to death, but remains in Rockhampton gaol pending
the decision of the Supreme Court on the question of law above
stated."' !.
Blake contended that the mere knowledge by the prisoner that
a reward and free pardon had been offered by the Government
for the discovery of any person, who had not actually committed
the murder, would not be sufficient to render his confession
inadmissible ; but if it was shown, in addition, that the knowledge
had operated on the prisoner's mind in making the confession,
then it would be rendered inadmissible : R. v. Boswell (C. & M.
684, and 3 Russell on Crimes, 373) ; R. v. Blackburn and others
(6 Cox 333). In Archibald's case it was shown that he had the
knowledge, and that it had operated on his mind, and the caution
he had received was immaterial. The prisoner may have said
to himself : " If I don't make this confession I cannot benefit
from it ; I will run the chance of it being used against me."
The caution might not have removed the state of mind under
which Archibald was induced to make the statement. He might
not have beUeved the caution. He was told of the proclamation,
and immediately expressed the wish to make a confession. He
was in the very position of a person to whom the proclamation
was directed, being cognizant of the crime, but not having com-
mitted it. Would anyone say that the proclamation had not
operated very strongly on the prisoner's mind.
[Ltjtwychb J. : I have no doubt it would. I hope that in all
future proclamations accessories before the fact will be expressly
excepted from the offer of pardon or reward.]
It was evident that the caution was not sufficient to remove
the impression from the prisoner's mind produced by the
proclamation, and it was reasonable to say that the making of
the confession was the very thing that would have entitled him
to the pardon offered. If he had said one word about his state-
ment being secured as evidence he must have been discharged,
as his case would then be that of B. v. Blackburn. There was,
however, no substantial difference between the two. The question
was : " Was the evidence purely voluntary ? " It was not
CRIMINAL REPORTS, 1860-1907. 47
purely voluntary if there had been anything to influence the ^- "■ A.rchibald.
prisoner, such as the proclamation in this case.
Pring A.G., for the Crown : The case of R. v. Boswell had been
fully distinguished in the subsequent case of jR. v. Dinghy (1 C.
& K. 637), which was particularly applicable to the present case.
In R. V. Dingley a caution had been given, but not in R. v. Boswell,
and in the former the confession was held admissible. In Archi-
bald's case he was twice told that his statement would be used
against him, and no promise whatever was made to him, and the
caution was given not by a person not having authority, but by a
justice of the peace. In Boswell' s Case the statement was ren-
dered inadmissible on the express ground that it was made on an
inducement held out by an authorised person. The present
ease differed entirely from that. Not only was no inducement
held out by an authorised person, but there was evidence that
he was distinctly cautioned by an authorised person, not only
once, but twice, and told there was no hope that his statement
■would be secured as Queen's evidence. It would not do to say
that the mere knowledge of a reward having been offered oper-
ated to such an extent on the prisoner's mind that the impression
could not have been got rid of by a twice-repeated caution. The
prisoner did not intimate at the time that he made the statement
that the offer of pardon and reward had operated on his mind
with respect to his own position ; but he told Mr. Elliott that
he made the statement in order to enable him, Elliott, to get the
reward. In the case of R. v. Clewes (4 C. & P. 221), an absolute
inducement had been given, a hope of pardon held out ; but the
hope was destroyed, and the confession held to be admissible.
If- the learned counsel for the prisoner was right in his argument,
the mere knowledge of a free pardon having been offered must,
per se, be held to operate on a prisoner's mind, notwithstanding
repeated cautioning. In Blackburn's Case a caution was given,
but a distinction between that and Archibald's was : that in the
former there had been something more than a simple knowledge
of pardon offered on the part of the prisoner. It was shown
that he had apparently a notion that he would be received as
Queen's evidence. There had been referred to at the trial the
cases of R. v. Rosier and R. v. Lingate (Phillips on Evidence, 414) .
These two cases went to show that a caution given subsequently
to an offer of reward or pardon was sufficient to efface such offer.
In the case of R. v. Howes (3 Russell, 384), the prisoner, previous
to making a statement, was told that it might do him good ;
48 QUEENSLAND JUSTICE OF THE PEACE.
E. V. Aeohibald. i)ut it Tffg^s subsequently held to be admissible against him. Coun-
sel also referred to R. v. Berrigan (3 Russell 376).
Blake, in reply, contended that Archibald's case was entirely
different from any cited by his learned friend. In those oases,
out of the three in which an inducement was held out, in two it
was held out by constables, and in the third, by a coroner, and it
was afterwards negatived by a magistrate, when the Court held
that the caution of the latter was sufficient to efface any impression
received by the prisoner from what the coroner said. It was not
to be supposed that Archibald would necessarily place much
reliance on the assertion of Mr. Murray or Mr. EUiott that the
confession would be used against him. They were not in a
position to say whether or not it would have been used as evidence
against the prisoner. The proclamation was issued by the
Governor of the Colony through the Government, and Mr. Murray
and Mr. Elliott could not interfere.
Cockle C.J. Cockle C.J. : Blackburn's case certainly goes a very great way.
It appears that the prisoner was told, before he would say any-
thing, that his statement would be used against him. That
statement was tendered as evidence to the presiding judge, Mr.
Justice Talfourd, and rejected by him, after consultation by Mr.
Justice Williams, on the ground that it appeared that the prisoner,
in making it, had a notion that he would be received as Queen's
evidence. We should, of course, give every consideration to cases
decided by eminent judges, but we are also bound to exercise
judgment of our own in the matter. It must be remembered
that, in these mixed cases of law and fact, it is almost impossible
to lay down any rule that can be applied with certainty and
definitely in all cases. We must, therefore, look in this case
to the words used, and to the circumstances of the case, as dis-
closed in the learned judge's report. The prisoner was indicted as
an accessory before the fact to a murder alleged to have been
comnjitted by two other persons. He was apprehended, and,
when in custody, the lock-up keeper told him that a reward and
free pardon had been offered to any person not actually the
murderer. We ought not to interpret this offer as being addressed
so directly to the prisoner as to lead him to think that it was a
special offer to him, for at the time the number of persons who
had been engaged in the transaction was uncertain. On being
informed of the offer, prisoner said that he had a mind to tell
Mr. Elliott when he was arrested, and the lock-up keeper rep
CEIMINAL REPORTS, 1860-1907. ^ 49
that he should have done so, as it would have been better for him- ^- "• Archibald.
self. We may regard the alleged inducement in a double point Cookie C.J.
of view — first, as an inducement arising from the offer of reward
and pardon, and second, as an inducement from the lock-up
keeper himself. These words of the lock-up keeper may be
interpreted as meaning that it would have been better for the
prisoner had he told sooner, or as a merely formal continuation of
the conversation, or as an expression of opinion that he was too
late in making his statement. On seeing Mr. Elliott, the prisoner's
words seemed to be rather an excuse for making his statement so
late, and it is possible that the interpretation put by him on the
lock-up keeper's words was, that it was too late. If this is to
be regarded as an inducement of either kind, I think if the
prisoner had then and there told aU he had to tell to Mr. Elhott,
that his statement ought not to have been admitted in evidence,
and my learned brother has already intimated the same opinion.
But he did not then and there make a statement to EUiott.
EUiott took him at once before a magistrate, and, on his saying
that he wished to make a statement, told him that whatever he
said would be taken down in writing, and given in evidence
against him. The learned counsel for the prisoner seemed
to have abandoned the ground that the prisoner confessed on
the strength of any inducement held out by the lock-up keeper,
but argued on the ground of the inducement of the reward and
pardon. I shall examine the matter, therefore, with reference
to that ground. I think there can be no doubt that, if the prisoner
made this statement under the reasonable belief that in doing so,
he was either making it as a witness for the Crown, or doing
something preUminary to becoming a witness for the Crown,
then, on the strength of the recorded cases and general ground
of jurisprudence and public policy, this statement should be
excluded ; because, if once the notion get abroad that offers
by the Government of reward and pardon are to be used as snares
for admissions and confessions, they will fail as an inducement
for confessions. We must, therefore, look to whether the
prisoner had reasonable grounds for beheving that he was acting
in the capacity of a witness for the Crown. To say that he
acted under the influence of hope or fear would not, I think,
cause the exclusion of this statement ; because most statements
made in criminal cases are made under such influences. They
were to consider whether Archibald made the statement under a
reasonable behef that he did so as a witness, or preparatory to
50
QUEENSLAND JUSTICE OF THE PEACE.
E. V. Abchibald.
Cockle C.J.
Lutwyche J.
becoming so. There Avas nothing in the demeanour of Elliott
calculated to inspire the prisoner with such a behef. He does
not invite him to a confession, but takes him before a
magistrate, puts questions to him which do not imply a very
inviting demeanour, and tells him that what he says will be
taken down and used as evidence against him. These words
were not consistent with the making an impression that Archibald
was to be treated as a witness. The words used by Murray
were stronger still. He said to Archibald, " Be cautious what
you say, as it will be taken down in writing, and may be used
against you at your trial." Witnesses are not generally placed
on their trial, and Archibald's object in making the confession
was to avoid being tried. One would think that these words
would have been sufficient to raise grave doubts in Archibald's
mind as to whether when making this statement, he did so as a
witness. I think, therefore, we must take it that there is sufficient
evidence to show that any reasonable impression of T^chibald
that he was to be taken as a witness must have been effaced from
his mind. In the case of R. v. Rosier, the prisoner having been
told that it would be better to confess, asked a magistrate if it
would be better, and he replied that he could not say that it
would. The subsequent confession was admitted. What the
magistrate said there amounted to this " what you say, if you
say anything, may endanger you." In that case the judges were
unanimous in holding that the confession was admissible in evi-
dence, on the ground that the magistrate's answer was sufficient
to efface any impression that the constable might have raised.
The case of R. v. Lingate is to the same effect. For these reasons
I am of opinion that Archibald's statement must be deemed to
have been voluntary, that it was properly admitted in evidence,
and consequently that the conviction must be confirmed.
Ltjtwyche J. : We have to consider how far the promise of
pardon operated on the mind of Archibald, so as to induce him to
make the statement. In the first place, it is to be observed that
it does not appear he was present at the meeting when the tele-
gram, purporting to be from the Colonial Secretary, was read,
and that he received information of that fact from the lock-up
keeper, a person who might have been telling him, for purposes
of his own, an untrue story. If the statement had been made on
such an untrue story it would have, consequently, been inad-
missible. But, as the case stands, we must take it that, though
the promise was made by the Colonial Secretary, the prisoner had
CRIMINAL EEP0RT8, 1860-1907. 51
no better knowledge of the fact than that obtained from the Ups ^- '•'• ■^ch^b^I'''-
of a lock-up keeper, a person in a very inferior position. Then, Lutwyche J.
how far does this promise operate on the prisoner's mind ? When
EUiott goes in and sees him, he says : " I was coming in to tell
you about it, but I was waiting until the meeting would be over,
and a reward offered, as I wished you to get it." Not a word
there about a pardon. So far, therefore, there is no affirmative
evidence of the operation of the promise of pardon on the prisoner's
mind. Being taken by Mr. Elliott before Mr. Murray, he is at once
told by the former : " Whatever you say will be taken down
in writing and given in evidence against you." Now, here was
a person, in a superior position to the lock-up keeper, who gives
him that direct warning, and that warning was repeated by Mr.
Murray in still more precise terms, as follows : — "Now, Archi-
bald, be cautious what you say, as it will be taken down in
writing, and may be used against you at your trial." That, to
my mind, would have been quite sufficient to have effaced any
impression, if any such had been created, that he could obtain a
pardon from the Crown. But, further, he was distinctly informed
before the statement was completed, when it was half completed,
that it was not being accepted as Queen's evidence, and that
the judge would have to decide that question. There was affirm-
ative testimony that he was so informed, and, although the
constable who took down the prisoner's statement says that he
did not hear it, and that, if said, he must have heard it, that
proves little, for he may not have recollected that the words
were used, or may not have gathered their purport. Unless we
are to go to the length of saying that, after a reward has been
offered by the Crown, no caution, however strong and precise in
its terms, would be sufficient to prevent a prisoner's statement
being used in evidence against him, I think we must hold that,
in this case, the statement was properly received. Blackburn's
case certainly goes a great way, but, the distinction is that there
the judges came to the conclusion that there was affirmative
evidence of an impression on the prisoner's mind that he would
be received as Queen's evidence. Here there is no such affirm
ative evidence, but it appears that such an idea was distinctly
negatived. I prefer to rest my judgment on Rosiefs case, which
was a decision of a Full Court, and appears to me to be most
consistent with true principles. I think the conviction should
be affirmed.
Conviction affirmed.
52
QUEENSLAND JUSTICE OF THE PEACE.
1869.
1 7th December.
1870.
I6tU March.
Cockle a.J.
Lutwyche J.
[In Banco].
GOLDSMITH v. ROCHE.
[2 S.C.K. 55.]
Cattle Stealing Prevention Act (17 Vic, No. 3), s. 3— Detention of
a horse — Absence of stealing — Limitation — Practice — Supple-
menting depositions by affidavits.
A prohibition was granted to restrain further proceedings on an order for the
restitution of a horse, under s. 3 of 17 Vic, No. 3, no evidence having been
adduced that the horse was stolen, or stolen within twelve months of the com-
mencement of the proceedings.
Affidavits are not admissible to supplement the depositions as to what took
place before justices.
Quaere, whether s. 3 of 17 Vic, No. 3, is a penal section.
Motion to make absolute a rule nisi for a prohibition restrain-
ing G. W. EUott, P.M., H. T. Plews, and J. Wonderley, JJ.P.,
from further proceeding on an order, dated 19th November, 1869,
whereby Frederick WiUiam Roche was ordered to deliver up a
horse to Edward Goldsmith, who had laid an information under
s. 3 of The Cattle Stealing Prevention Act of 1853.
On 7th September, 1869, Roche appeared at the Police Court,
Dalby, to answer a complaint preferred against him by Goldsmith
for the unlawful detention of a horse, alleged to be the property
of the latter, when the summons was dismissed. On 16th
November Roche was served with another summons, issued on
the information of Goldsmith, for the restitution to him by Roche
of the same horse, under s. 3 of 17 Vic, No. 3, and alleged that
the horse in dispute had been stolen from Highfields, and found
in Roche's possession, but did not charge Roche or any other
person with the stealing. From the depositions it appeared that
the horse in dispute was claimed by Roche and Goldsmith. The
latter deposed to having purchased it in 1867 from one Ballard,
Roche was not examined ; but one Wilkie deposed that he had
bred the horse, and sold him to one Robinson, who subsequently
delivered the horse to him for Roche, and that Robinson had
given up the horse in consequence of being unable to meet a debt
due by him to Roche. There was no evidence that the horse had
been stolen at any time, though there was evidence of a belief
that it had been stolen.-
The grounds for the rule nisi were : — (1) That it appeared by
the evidence that the defendant set up a bona fide claim of title.
(2) That the title to property being in question, the justices had
CRIMINAL REPORTS, 1860-1907.
53
no jurisdiction. (3) That the justices wrongfully refused to hear
«vidence of a previous adjudication in respect of the same subject
matter. (4) That there was no evidence of the stealing of the
horse, the subject matter of the information. (5) That there was
no evidence of the stealing of the horse within twelve months
before the date of the information. (6) That there was no evi-
dence of the stealing of the horse within twelve months before the
•date of the information, or of the commencement of the proceed-
ings, or of the order. (7) That the conviction or order was against
the evidence.
When the rule nisi was granted, leave was given to file additional
affidavits by Mr. Ocock, and other affidavits, provided they be filed
iour clear weeks before the day of return, including copies of
preceedings in both cases.
Affidavits were read, including those of Messrs. EHott and
Wonderley, who denied that any evidence of the previous case
heard at Dalby was tendered by Roche.
Griffith moved the rule absolute.
Handy, for the respondent, showed cause.
The following authorities were cited : — R. v. Dodson (9 Ad. &
Ell. 704) ; Ex parte Rusden ; Ex parte Preston (Wilkinson's
Magistrate, pp. 97, 98) ; Ex parte Ivill [2 N.S.W. S.C.R. (L.), 92.]
Cockle C.J. : It does not appear on the depositions that there
was satisfactory evidence before the justices that the horse was
stolen, and stolen within a year of the commencement of the
preceedings, and on that ground alone the prohibition must be
granted. It may be there was more evidence than appears on
the face of the depositions, but it would be dangerous to allow
depositions to be supplemented by affidavits of what took place
before magistrates. The depositions alone must be our source of
knowledge of what took place before the magistrates. With
regard to the subject of a claim of right, we are not satisfied that
the section under which ihe information was laid is a penal one.
Moreover, satisfied or not, there being nothing in the depositions
to show that this claim was tendered," the question raised is utterly
immaterial, except so far as regards costs. I think this rule
should be made absolute, but without costs.
LuTWYCHE J. concurred.
Solicitors for Applicant : Wilson and Bunion.
Solicitor for Respondent : Doyle, agent for Hamilton.
Goldsmith v.
BOGHE.
Cockle C.J.
Lutwyehe J
Lutwyche J.
54 QUEENSLAND JUSTICE OF THE PEACE.
[In Banco].
R. V. CASTLES & GRIFFITHS.
[2 S.C.R. 147.— Note.— 29 Vic, No. 6, is repealed, see now ss. 398 (111.) and 402 of
Criminal Code. As to joinder of counts, see now ss. 567, 568 ol Criminal
Code. As to quashing indictment see now ss. 571 and 596 ol Criminal Code.}
1871. Criminal Law — Information— Joinder of several felonies in different
12th May. counts against two 'prisoners in one information — Larceny
CockUG.J. Act of 1865 (29 Fie, No. 6), ss. 10, 11.
In an infornuition against two prisoners a, coiint for feloniously stealing a cow
had been joined with counts for feloniously killing a cow, with intent to steal
the carcase and hide, and one prisoner was found guilty on the second count, but
not guilty on the first and third, and the other prisoner was found guilty on the
first, but not guilty on the second and third.
The conviction was aflGrmed, the right being reserved for the prisoners to sue
out a writ of error.
An application should have been made to quash the information.
Ceown Case Reseeved by the Judge of the MetropoUtan
District Court.
James Castles and Spencer Griffiths were tried on 22nd May at
Warwick on an information containing three counts (1) that on the
13th May last they did feloniously steal, take, and drive away one
cow, the property of Frank Buttner ; (2) that they did feloniously
kiU the cow with intent to steal the carcase ; (3) that they did
feloniously kill the cow with intent to steal the hide. The
prisoners pleaded not guilty, and were defended by their attorney.
There was ample evidence to go to the jury against the prisoner
Griffiths on the first, second, and third counts, and also against
Castles on the second and third counts ; the judge ruling there
was no evidence against him on the first. It appeared from
the evidence that the cow in question was in possession of the
bailee of the owner on 11th May, and it was found in the stock-
yard of the prisoner early in the morning of 13th ; and the evidence
adduced by the prisoner as to how it came into his possession
was found by the jury to be false. About sunrise on the morning
of the 13th the prisoners killed the cow, and before skinning
and cutting up the carcase they were interrupted by the police.
No objection was taken by the prisoner's attorney that they
were charged in the first count with one felony, and in the second
and third with another felony ; nor was any application made
that the Crown Prosecutor should elect to proceed on one or other
of the counts. The jury first brought in a verdict of not guilty
CRIMINAL EEPORTS, 1860-1907.
55
against Castles on the first count, and guilty on the second and R- «^ Castles and
lTR.Tli''F'TTHS
third, and guilty against Griffiths on all counts. The judge then
explained to the jury that there was no necessity to convict
the prisoners on more than one count, and a verdict was then
returned against Castles of " guilty " on the second, and " not
guilty " on the first and third counts ; and of " guilty " against
Grifiiths on the first, and " not guilty " on the second and thifd
counts. No motion was made in arrest of judgment, and each
prisoner was sentenced to three years' penal servitude. Before
passing sentence, the Judge entertained some doubt, whether
from the evidence adduced, the count for feloniously steaUng
should have been joined with those for feloniously kilfing with
intent to steal the carcase and hide. He also entertained a
doubt, whether on the information, one prisoner could be found
guilty on the first count, and not guilty on the second and third,
and the other could be found guilty on the second, and not
guilty on the first and third. The prisoners were undergoing
sentence, and the opinion of the Court was requested on the
questions (1) whether on the information the prisoners, or either
of them, ought to have been convicted, and (2) whether the
record was correct.
Bramston A.G., for the Crown, in support of the conviction
it was competent to join several descriptions of offences in the
same indictment, and therefore on the first point the conviction
must be maintained. R. v. Heywood, 33 L.J. (M.C.) 133 ; R.
V. Moah, Dears 626 ; R. v. Trueman, 8 C. & P. 727 ; R. v. Mitchell,
3 Cox C.C. 93. [LuTWYCHE J. mentioned R. v. Hinley, 2 M. & R.
524 ; R. V. Kingston, 8 East 41 ; 9 R.R. 373 ; Young v. R., 3 T.R.
98, 106.] On the second point the counts being joined, and the
transactions which created the offence charged against each
prisoner being the same, it was competent to find them guilty
on different counts. R. v. Butterworth, R. & R. 520 ; R. v.
Hempstead, R. & R. 344 ; R. v. Pulham, 9 C. & P. 280 ; R. v.
Hayes, 2 M. & R. 155 ; 2 Hawkins, P.C. 622.
Cockle C.J. : An appUcation should have been made to quash cookle C J,
the information. The conviction must be affirmed. R. v. Hayes,
2 M. & R. 155. We reserve the right to the prisoners to sue out a
writ of error, if they think fit.
LuTWYCHE J. concurred, and referred to R. v. Wheeler, 7 C. & mtwyohe J.
P. 170.
Conviction affirmed.
56 QUEENSLAND JUSTICE OP THE PEACE.
[In Banco.]
R. V. LEVY.
[2 S.C.R. 166.— Note.— 29 Vic, No. 6, s. 3, is repealed, see now ss. 391, 398 of
Criminal Code.]
1871. Larceny as a bailee — Bailment — ValvMble security — Promissory
18th, 19th Dec. ^^^g — Passing of property — Larceny Act of 1865 (29 Vic,
Cockle C.J. No. 6), s. 3.
Lutioyche J.
L. was convicted of larceny as a bailee of a promissory-note under the
following circumstances : L. called at K.'s store and asked for an order for goods,,
and K. gave him an order for goods to the value of £54 lOs. ; L. asked then K. for
a promissory-note, as he was going to Brisbane that evening ; he said he put in .
the goods much cheaper than before, and he wanted the note. K. said, " If I
give you this promissory-note will you forward the goods at once ? " L. replied
"I wiU." K. then said, -" Should you not do so I request you to forward the
promissory-note at once." L. said, " Yes ; " then took out of a book a blank form
of promissory-note, and wrote on it and handed it to K. to sign. K. signed it and
gave it to L. ; the note was not stamped when handed to K., and there waa no
evidence to show at what time it was stamped. K. swore that L.'s name was in
the note when he signed it ; the goods were never forwarded by L., and subse-
quently the note was passed at L.'s request to his credit by B., to whom prisoner
had been previously indebted. K. wrote to L. for the return of the note, and
received one somewhat similar from L.
Hdd, that there was no reasonable evidence to go to the jury in support of
the information, that there was no property in K. of the promissory-note, and
that there was no bailment.
Crown Case Reserved by Lutwyche J.
The prisoner, Lawrence Levy, was tried before Mr. Justice
Lutwyche on 5th December on a charge of larceny as a bailee, and
the information alleged that he being the bailee of a certain
valuable security — namely, a promissory-note for £54 lOs., and
one piece of paper, the property of D. T. Keogh, of Ipswich,
unlawfully and fraudulently converted it to his own use. The
second count charged him with larceny of the said note. It
appeared from the evidence that the prisoner, on the 28th June,
called at Keogh's store, and asked him for an order for goods.
Keogh gave him an order accordingly for goods to the value of
£54 10s., and prisoner then asked him for a promissory-note,
as he was going to Brisbane by the coach that evening. He said
he had put in the goods much cheaper than before, and that
he wanted the note. Keogh said he would do so, and the follow-
ing conversation then took place : Keogh said " If I give you this
CBIMINAL EEPOETS, 1860-1907. 57
promissory-note, will you forward the goods at once ? " Prisoner ^ '^- 1'^^*-
replied, " I will." Keogh then said, " Should you not do so I re-
quest you to forward the promissory-note at once." The prisoner
said " Yes," and then took out of a book a blank form of promis-
sory-note, and wrote on it and handed it to Keogh to sign. Keogh
signed it, and gave it to the prisoner. The note was not stamped
when handed to Keogh by the prisoner, and there was no evidence
to show at what time it was stamped. Keogh when asked if
the name " Laurence Levy " was put in the note by the prisoner
when he was in his (Keogh's) shop, said he could almost swear it
was in the note when he signed it, and on re-examination said
he had not the slightest doubt about it. The goods for which the
promissory-note was given were never forwarded by prisoner,
and on the 3rd July the note was passed at his request to his
credit by Mr. E. Barnett, to whom the prisoner had been previ-
ously indebted. On the 17th August Keogh wrote to prisoner to
send him the note or the goods, and on the 18th the prisoner
wrote to Keogh in reply, stating that he had done as requested.
Enclosed in the prisoner's letter was a piece of paper, purporting
to be a cancelled promissory-note, similar in all respects to that
signed by Keogh, except that it was unstamped, that the date
when due was wanting, that part where the signature should have
been was torn oJEE, and that it bore only one endorsement, which
was cancelled. The promissory-note signed by Keogh was
dishonoured when it arrived at maturity. At the close of the
case counsel for prisoner submitted that there was no case to go
to the jiury, and urged that there was no evidence (1) of a bailment
by Keogh to prisoner ; (2) of the note being available security
within the meaning of the Act, 29 Vic, No. 6, s. 3 ; (3) of Keogh's
property in the promissory-note ; (4) of the existence of any piece
of paper as such after Keogh had signed the promissory-note ;
(5) of the completeness of the instrument as a promissory-note
when it left the hands of Keogh ; and (6) of the value of the piece
of paper charged to have been stolen by the prisoner as a bailee.
The case was left to the jury, who found the prisoner guilty of
larceny as a bailee, and he was sentenced to imprisonment with
hard labour for twelve months in Brisbane Gaol. The question
reserved was — was there any evidence to go to the jury in sup-
port of the conviction upon the information laid against the
prisoner ? If the Court should be of the opinion that there was
such evidence, then the conviction was to stand affirmed ; but
if there was not such evidence, then the conviction was to be
avoided, and the proper entry made on the record accordingly.
68 QUEENSLAND JUSTICE OP THE PEACE.
R. v. Levy Blake Q.C. and Hely, for the prisoner : There is no evidence
of bailment ; the whole transaction does not constitute that which
the law calls a bailment. Whether there was fraud or not on
the part of the prisoner is not the question, but whether there
was larceny as a bailee. To constitute a bailment there must be a
deUvery of something of value to a bailee, either to be kept or
to have that value increased by something to be done by the
bailee, and, at a specified time, afterwards to re-dehver the
thing in its original state, or with some improvement on the thing
into which it had been converted to the bailor (Coggs v. Bernard,
1 Smith's L.C. 177), and to constitute a bailment of the fifth kind,
there must be a deUvery to carry or otherwise manage for a
reward to be paid to the bailee. Nothing of any value passed
from Keogh to the prisoner. This is not a case where the bill
was delivered for discount, it was delivered for payment. It
was not a bailment, because the thing delivered by Keogh to the
prisoner was not to be re-delivered, nor was that into which
it was to be converted, to be re-delivered ; see Cockburn C.J.
{R. V. Hassall, L. & C. 62). Here the prisoner was not bound to
return the specific coins he received. Does not the word, bailee,
imply that the thing received is to be specifically returned ?
A bailee must return either the article received, or something
into which it has been converted in accordance with the terms
of the bailment. What the prisoner had was never the property
of Keogh [R. V. Phipoe, 2 Leach CO. 673, at page 679). " It is
essential to larceny that the property charged to have been
stolen should be of some value ; that the note in the present
case did not, on the face of it, import either a general or a special
property in the prosecutor ; and that it was so far from being
of any the least value to him, that he had not even the property
of the paper on which it was written ; for it appeared that both
the paper and the ink were the property of Mrs. Phipoe, and the
dehvery of it by her to him could not, under the circumstances of
the case, be considered as vesting it in him." He had not to
return the identical thing to Keogh, and if it was worthless it
was never a valuable security. (29 Vic, No. 6, s. 3). It was
merely Keogh's acknowledgement of indebtedness (Rex v. Hart,
6 C. & P. 106). The note was primarily prepayment for goods
which the prisoner was to send to Keogh, and if he did not send
the goods, he was to get the note back, and as he did not send the
goods it is a case of fraud, or at least a breach of contract. The
note was not a valuable security until it passed into the hands
CRIMINAL EEPORTS, 1860-1907. 59
of Barnett. If the prisoner had not discounted it before it becatae ^ v^^vy.
due, it would have been worthless ; because if he sued Keogh, a
total failure of consideration could be pleaded. The position
of the prisoner was more that of a trustee of the note than any-
thing else, and certainly he was not a bailee. He entered into
a collateral contract, and cases which tend to convert the ground
of civil action into a criminal offence are to be followed with
caution {Bex v. Shea, 7 Cox C.C. 147). It was a contract to
deliver, not to re-deUver. Another point is this, being a chose-in-
aotion it is not the subject of larceny, Beg v. Watts, Dea. 326 ;
B. V. Morrison, 8 Cox C.C. 194. The conversation between the
parties amounted to an agreement on the part of the prisoner
to negotiate the note, and however the transaction is looked at
it is impossible to make it appear as a bailment. The note or
chattel was never the property of Keogh ; he never had it in his
possession except to write upon it ; and as no property passed
from Keogh to the prisoner there could be no bailment. All
that could have passed was a future right to possession of the
note. No property passed from Keogh ; the paper was not a
valuable security {B. v. Lowrie, L.E.. 1, C.C.R. 61) ; and there
was no bailment.
Bramston A.O., for Crown.
The Couet suggested that counsel for the Crown should confine
himself to the question of property, as on that the whole case
would turn.
Bramston A.G. : The note was the property of Keogh as soon
as it was handed to him by the prisoner, Evans v. Kymer (1 B.
& Ad. 528). When prisoner handed over the note he parted
with all the property in the note — deHvery on request is quite
a sufficient consideration for transfer of the property. If it was
not in his possession it never was a complete note, he never
dehvered. If it was never in Keogh's possession then he could
not have signed it. He had a right to demand the note again,
Treuttel v. Barandon (8 Taunt. 100) ; B. v. Smith, 21 L.J. (M.C.)
111). Keogh could have refused to part with it after he had
signed it, and when prisoner handed the complete instrument
to Keogh, he parted with the property. The document was
received by the prisoner on the express condition that it was
to be returned to him ; and that is sufficient to constitute a
bailment. There was no necessity to show actual value, but the
€0
QUEENSLAND JUSTICE OF THE PEACE.
R. V. Levy.
Cockle C.J.
Lutwyche J.
moment the note passed from the prisoner it became a valuable
security for the amount stated. The cases quoted by the other
side do not apply. Keogh could have recovered on an action in
trover, and if he had sufficient property in the document to sustain
such an action, it cannot now be set up that he had no property
in it. The property was in Keogh, it continued his property,
and there was a bailment. In fact, the jury found that the
bailment was complete, and therefore the conviction should
stand affirmed.
Blake Q.C., in reply, was not heard.
The Coukt held that there was no reasonable evidence to go
to the jury in support of the information. They were of the
opinion that there was no property in Keogh of the promissory
note, and that there was no bailment, and the conviction could
not therefore be sustained.
Conviction avoided.
Solicitors for prisoner : Macpherson & Lyons.
1871
81% November,
8th, 12th, aSnd
December.
Cockle C J.
Lutwyche J.
[In Banco].
In re COURT.
[2 S.C.R. 171.— Note.— See now s. 20 ol Criminal Code.]
Criminal Law — Felon — Escape — Re-arrest after expiration of
period of sentence — Discharge on habeas corpus.
A felon sentenced to five years' imprisonment escaped shortly afterwards,
and after the expiration of the period of sentence was re-arrested, and committed
to custody on a warrant of a magistrate.
Held on » return to » writ of habeas corpus, that he was illegally in custody,
but might be prosecuted for escaping. The prisoner was discharged.
Rule nisi calling on the Sheriff to shew cause why a writ of
habeas corpus should not issue, commanding him to have the
prisoner, Charles Court, brought before the Court. The prisoner
was sentenced on 14:th September, 1865, to two concurrent
sentences of five years' imprisonment with hard labour, for
horse stealing. He escaped from St. Helena on 16th August, 1866,
and was again lodged in custody on 4th August, 1871, under a
warrant of a magistrate, after the expiration of his term of im-
prisonment.
CRIMINAL REPORTS, 1860-1907.
61
Bramston A.G., for the Sheriff. A man cannot take advantage
of his own wrong, the prisoner should not therefore be allowed to
escape punishment of the felony of which he was convicted because
he has evaded it. He should not be punished for the offence of
escaping which is only a misdemeanour, instead of the felony.
The rule should be discharged. 1 Russell, 581, 586; citing 2
Hawkins, P.O., c. 19, s. 12 ; Wilkinson's Editn. (1866) of Plunkett,
p. 281.
Blake Q.C. and Griffith, for the prisoner. The term of sentence
has expired. The sentence commenced from the date of con-
viction. Coke, 52 a Pt. 3, Vol. III., 145. The proper course
would be to indict the prisoner for escaping, and all the legal
questions could then be decided. When the sentence com-
menced to run it was similar to the running of the Statute of
Limitations, which could not be stopped, and at the expiration
of the period from the date of the conviction the sentence expired,
and could not be prolonged. The only means by which a cumu-
lative punishment can be carried is by an indictment for an
escape. Bacon's Abridgt, 133 ; 2 Hawkins P.O., c. 18, s. 5 ;
4 Vic, No. 10 (1 Bring, 588) ; Easton's case, 12 Ad. & El. 645.
Griffith followed. The prisoner is now detained because he
has escaped. A man's liabiUty to punishment can only be
ascertained by a record. Groome v. Forrester, 5 M. & S. 316.
C.A.V.
22nd December, 1871.
The Cottbt referred to 3 Wm. IV., No. 3, s. 20 ; 4 Vic, No. 10,
s. 1 ; 18 Vic, No. 7, s. 2 ; 11 & 12 Vic, c. 42, s. 23 ; Form T. 1,
(Bring, 582, 588, 590, 779, 793) ; Easton's Case (ante), and ordered
the rule to be made absolute, the writ returnable at a later hour
of the same day.
The prisoner was then produced, and the return and writ read.
Griffith moved for the discharge of the prisoner.
Bramston A.G. did not claim to detain him as on a warrant of
commitment, two sessions of oyer and terminer having passed, but
claimed to detain him as of his original custody.
Per Curiam. The prisoner cannot be detained upon the
ground that he escaped before the expiration of his sentence, and
which has since expired. He might be prosecuted for escaping if
such a course is considered necessary.
Prisoner discharged.
Solicitor for prisoner : Bunton.
In re Court.
Cookie C.J.
Lutwyohe J.
62
QUEENSLAND JUSTICE OF THE PEACE.
1871.
18th December.
Cockle C.J.
Lutwyche J.
Cookie C.J.
[In Banco.]
REGINA V. PENN.
[2 S.C.R. 177.]
Criminal Law — Evidence — Deposition of absent witness — Evidence
and Discovery Act of 1867 (31 Vic, No. 13), s. 67.*
The depositions taken before justices of a medical witness, who was absent
from the trial of a prisoner on account of having to go to Sydney for the benefit
of his health, was held admissible as evidence.
Ji.y. Wicker (18 Jur. 252) followed.
Ceown Case Reserved.
This was a special case reserved from the last sittings of the
Supreme Court at Maryborough, when the prisoner was sentenced
to twenty years' penal servitude for shooting James Cleary.
The point reserved was whether under the provisions of The
Evidence and Discovery Act of 1867 the depositions of one of the
witnesses. Dr. Brown, should be admitted as evidence ; Brown,
who was suffering from consumption, having previously left for
Sydney for the benefit of his health.
Bramston, A.G., for the Crown. The question is whether a
witness, who leaves town for the benefit of his health, is too iU to
be able to travel ; if Dr. Brown had resided anywhere else the
depositions must have been received. Section 67 of the Act pro-
vides for cases where the " witness shall be so iU as not to be able
to travel," which means, so ill as not to be able reasonably to
attend. Archbold, Edn., 1867, p. 230 ; B. v. Biley (3 C. & K.
116) ; B. V. Coclcburn, Dears & B., 203, 26 L.J. (M.C.), 139;
Boscoe, 7th Edn., 66 ; B. v. Wicker, 18 Jur., 252 ; Taylor, p. 406.
No one appeared on behalf of the prisoner.
Cockle C.J.
be affirmed.
I am of the opinion that the conviction should
Lutwyche J. LuTWYCHE J. : I am of the same opinion on the authority of
B. V. Wicker.
Conviction affirmed.
* Compare Justices Act (50 Vic, No. 17), s. 111.
CRIMINAL REPORTS, 1860-1907.
63
[In Banco.]
R. V. COATH.
[2 S.C.R. 178.— Note.— See now ss. 354 and 355 of Criminal Code and Pacific
Islanders Protection Act, 1872 (35 and 36 Vic, No. 19), s. 9.]
Criminal Law — Kidnapping — Slavery.
The ship Jason, from Queensland, visited certain islands in the South Seas,
inhabitants from which came out to trade, and were forcibly seized, detained,
and brought to Maryborough, where they were set free.
Hdd (afBrming Ltjtwyche J.) that as the islanders had been detained and
brought to Queensland in a British ship against their wills, the offence of kid-
napping had taken place, and the Court had jurisdiction to try the persons charged.
The history of slavery reviewed.
Cbowk Case Reserved by Lutwyche J. on the trial of
the prisoner at the last criminal sittings of the Supreme Court
at Brisbane.
The prisoner was charged in the first count of the indictment
with the abduction and kidnapping of certain South Sea Islanders
in the month of January, 1871 ; the second count charged him
with an assault upon the said islanders ; the third with abduction
and kidnapping of nine other islanders in February, 1871 ; and
the fourth with an assault upon the same islanders. He was
found guilty on the third count, and not guilty on the other
counts, and was sentenced to five years' imprisonment in Birisbane
Gaol, and to pay a penalty of £50, and to remain imprisoned
until such fine be paid. In summing up the Judge directed the
jury that if they were satisfied that at the time of the commission
of the alleged offence charged in the third count, the Jason was
a British ship, and was sailing on the sea, she was sailing on the
high seas, and that the offence was triable here. He also
directed that if they were satisfied that the nine islanders, or
any of them, were brought on board or detained there against
their wiU, and carried away to another place, the charge of kid-
napping would be proved. Mr. Lilley, the defendant's counsel,
objected to the direction on both of these points, and the following
questions were accordingly reserved for the decision of the Court :
(1) " Was I right in directing the jury that if the Jason was a
British ship, and on the sea, she was saiUng on the high seas,
and that the subject matter of the inquiry was within the juris-
diction of the Court ? " (2) " Was I right in directing the
jury that if they were satisfied that the nine islanders, or any
1871.
18th December.
Cockle G.-T.
Lutwyche J.
64 QUEENSLAND JUSTICE OF THE PEACE.
K. V. CoATH. of them, were brought on board the Jason, or detained there
against their will, and carried away to another place, the charge
of kidnapping would be made out ? "
Lilley Q.C. and Blake Q.C., for the prisoner.
Bramston A.G. for the Crown.
Lilley Q.C. I ask that the case as stated be amended by stating
that the islanders when they were put on board the Jason were
treated in the same way as the other islanders who were on board,
and that they were landed free at Maryborough.
The Cottet. We refuse to allow the amendment, but consent
to the case being argued as if the facts referred to were set out
in the case.
Bramston A.G. mentioned R. v. Anderson, L.R. 1, C.C.R. 161.
Lilley Q.C. I do not think that the point raised by the first
question is tenable, and I will therefore address myself to the
second point. The question might be shortly stated thus :
" Did the case disclose any offence known to the English law ? "
I contend it does not, even admitting the facts to have been
proved. The question substantially is : " What is the offence
of kidnapping as known to the English law ? " Can it be com-
mitted on a savage or barbarous people captured and brought
within the protection of British law, and landed free at Mary-
borough ? (Stephens' Comm., 4th Edn., 163.) There is no
precedent of any kind for this conviction. The offence of kid-
napping only arises where persons are taken from under the
protection of the law of England, where the Sovereign is deprived
of a subject, or where there is a concealment of a person in any
part of the British dominions, so as to deprive the person of the
protection of the laws (B. v. Lord Grey, 2 Shower, 218 ; 1 RusseU,
962). Under the Roman law it was no offence to steal or capture
barbarous people, and the offence only existed where a freeman,
his wife, or child, was seized or held as a slave. It is no offence
to go to islands inhabited by a savage and barbarous people,
and to bring these people within the protection of the Enghsh
law. The only quaHfication which exists in The Slave Acts is that
such persons should not be captured or seized for the purposes
of being used as slaves. This might be morally wrong, and I
am not going to defend such transactions ; but the question is
whether there is an offence against the law. Until The Slave
CRIMINAL REPORTS, 1860-1907. 65
Acta inferior races could be enslaved. Slavery is not piracy ^- '• '^o*''^-
by the law of nations, but on the contrary it is lawful, and is
only made piracy by the municipal laws of England. The piracy
created by The Slave Acts is the carrying away of these men for
the purpose of using them as slaves. The carrying away itself
does not constitute the offence, and there is no case in the books to
show that the seizure of barbarians and bringing them under
the protection of the law is an offence against the law. The case
of Turbett v. Dassigney, 2 Shower, 221, was a pure case of kid-
napping, because the person was taken from under the protection
of the law. The moment these islanders touched the deck of
an EngUsh vessel they were free, and had a right to habeas corpus.
They were landed at Maryborough and were allowed to land
free : but it was possible that if they had been landed at Fiji,
which was not in the British dominions, the offence of kidnapping
would have occured ; because they would then be removed from
the protection of the law which they were entitled to by virtue
of being on board an English vessel. It is contrary to fact to state
that slavery was unknown to England, and the case of " The
Slave Grace," 2 Hagg, 94, showed that residence in England did
not make a slave absolutely free ; for, on returning to the place
from whence they came, they again became slaves. There is
clearly no kidnapping in this case, although there might have
been false imprisonment for a short time, for which it was com-
petent for the prisoner to have been punished. I therefore submit
the direction was wrong, and the conviction must be set aside.
(The following authorities were also cited : Dred Scott v. Sanford,
Howard's 19 U.S.R., 393 ; Somerset's Case, 20 S.T., 1-82 ; The
Penal Code of New York, 93, Austin, Vol. II., 242 ; Santos v.
Illidge, 8 C.B. (N.S.), 861 ; Reg v. Serva, 1 Den., C.C. 104 ;
The Daphne, 10 S.C.R. (L.) N.S.W., 37 ; 5 Geo. IV., C. 113).
Bramston A.G. The direction of the learned Judge was per-
fectly correct. There is no doubt the islanders were taken on
board against their will, and conveyed to Maryborough against
their will. It has been argued that this does not constitute
kidnapping, because it is not possible to kidnap a person of a
savage race if he is brought within the protection of the law;
but the effect of that argument is that a man is brought within
the protection of the law, and still that protection is refused by
preventing him from punishing the man who has infringed his
personal liberty. Throughout the whole of the argument of the
66
QUEENSLAND JUSTICE OF THE PEACE.
B. ■!;. COATH.
Ccckle C.J.
other side there is a fallacy which undermines the whole.- The
learned counsel has confused the efEect of the law with the law
itself. The illegality of man-stealing is not in the removal
of a man from England, but in the violation of that personal
liberty which the law of England recognises in every man (Stephens
Comm., 140 ; iJoscoe, 4th Edn., 568). If the right of the personal
liberty of these men was once touched, it cannot matter whether
they were brought to Queensland or elsewhere ; so long as it
was against their will, it was kidnapping. With regard to de-
priving the Sovereign of a subject, and taking a person from
the protection of the law, in these cases we have a condition which
necessarily attests to the illegal acts done, but it does not show
why the act is illegal. It tfan never be held to be the law of
England that the protection of the law is meted in proportion
to the civilization of a people. The savage has as much right
to protection under this law as the most highly educated. The
rights of these people to the protection of the law attached as
soon as they came on board the Jason ; they were then entitled
to the habeas corpus, *nd their right to demand the punishment
of those who had seized them also accrued. These people can
scarcely be called free, because they are unable to return from
whence they came, and they can get no redress. They are entitled
to enjoy the manners and customs and laws of their own country,
and their forcible removal was kidnapping. The Court should
remember that it was not the offence committed against these
people alone that it has to consider. It has also to consider the
serious injury done to the whole of the public by this outrage
of the law. It is the public peace that has been injured, and the
public has a right to demand punishment even in a greater
degree than the persons directly injured. In Lor^ Grey's case
(supra) it was the relations of the lady whom he concealed,
and the public, who demanded that he should be punished, and
not the lady herself. I therefore maintain that the conviction
must be maintained.
Lilley Q.G. replied.
Cockle C.J. : Although I cannot say I was convinced, I was
very much impressed, by the very learned argument which Mr.
Lilley advanced, and which he, I crave leave to say, pressed
properly on the Court, because the Court is never more in danger
of going wrong than when it is disposed to be likely to decide
upon emotional grounds ; and this is a case which ought to
CRIMINAL REPORTS, 1860-1907.
67
be decided solely on legal grounds. However bad the law may
be, the Court best does its duty by rigidly enforcing it, and
thus enabling its abuses to be perceived, and leaving it to the
Legislature to correct such abuses, and therefore as far as I am
concerned, I do not think any emotional ground weighs with me
at all in dealing with this matter ; but I do give considerable
scope to the argument from public policy which has been adverted
to on behalf of the Crown. We have no right, certainly in the
exercise of an arbitrary discretion, to say that this is a mis-
demeanour which the law does not say is a misdemeanour. We
should be careful not to do that ; but we may fairly say, and
not for any rhetorical reason at all, what would be the conse-
quences of disturbing this conviction, and of saying that the
facts which constitute the evidence on which the conviction was
founded do not constitute a misdemeanour ? We may fairly
and temperately look at these consequences. It would appear
that men — whether savage or civilized perhaps we are hardly
able to say, for there are degrees of civilization as well as of
everything else, but at any rate civilised enough to traffic, to
come in the way of the ship with the intention of trading, as was
•evidenced by their holding up a pig — these men are, after a
■display of force, thrust into a boat, and so induced to go on board
ship, and I cannot help thinking that some disregard for the
lives of these men was shown, for one poor fellow jumped over-
board and swam as he no doubt thought for his life. He was
brought back in an exhausted state, and if he had not been taken
on board it is quite possible he might have been drowned before
reaching land. Therefore, taking all the circumstances, we say
here is a display of something like treachery; a seizing of persons
who came to trade, and a disregard shown to life by attending
rather to the capture of those who were going on board than to
the poor fellow who ventured on a long swim for his life. Then
there is the example shown by these savages — one, an old man,
weeping perhaps for the thoughts of those whom he had on shore,
and who were weeping for him, and not only that, but after he
and the others were thrust down the hold, their yams and pigs
were appropriated, and their canoe used for firewood. I do
not use this for any rhetorical effect. It is obvious that any
Court would, if it could, avoid it ; but we must consider whether
one subject of Her Majesty is at liberty to fit out a vessel to sail
amongst these apparently savage and guideless islanders, and
seize them and appropriate their property a appears to have been
B. V. COATH.
Cookie C.J.
68 QUEENSLAND JUSTICE OF THE PEACE.
R. V. CoATH. (jone in this case. It is the more necessary that we should fix
Cpclile C.J. our attention on this, because it should be noticed that with the
improved manners and greater knowledge of succeeding ages,
the maxims of ptevious ages are deviated from. We see with
regard to the English law of evidence, in the case of Omichund
V. Barker (WiUes 538, 1 Atk. 21) in which for the first time, it
was recognised that difference of religion made no difference so-
far as giving testimony was concerned — when the great authority
of Lord Coke was cited to show that the evidence of a Jew ought
not to be admitted, Chief Justice WiUes said that the reasons
given, though coming from a great man, were not such as he
would follow, and he reversed, or rather did not act on the
decision of Lord Coke, but took the more correct view — the view
recognised by succeeding ages — that such narrow reasons did
not suffice to guide the law of evidence. Therefore we may
take it for granted that with the increasing culture and humanity,,
and toleration of ages, some of the old maxims should be moder-
ated. Though it is a difficult question to say what the law
may have been; and whether there is any authority to show
that the common law would have regarded this as anything^
but a grave outrage, we know that a great many deeds of violence
were perpetrated in America — take, for instance, in Spanish
America, where such deeds were done, not with the sanction of
the Spanish Government, but against their remonstrances, and
such forces as the then King could bring to bear were found
insufficient to remedy the abuses. We have no means of knowing
how far this institution of slavery was the result of law or perpetu-
ation by custom of what was originally a cruel abuse. There is-
no doubt, let it arise how it will, that colonial slavery does appear
to have been recognised in the English Courts ; but it must b&
remembered that these Courts did not make the law, but that
they were recognising a law made in some other places ; and I
confess that when it comes to the question of deciding upon the
rights of a man to his liberty, we are called upon to narrowly
scrutinise the old doctrines. Can it be said that because the
Courts recognised slavery in the British dominions that they
would recognise any sort of slavery ; that they would allow
an unfortunate Frenchman to be seized by any person who chose
to call him his slave ; and if such a person asked the Court to
recognise him as his slave, there is Uttle doubt that the Court
would refuse. I believe that any Court which is called upon to
restrain the liberty of a man on the ground of being a slave would
CRIMINAL REPORTS, 1860-1907. 69
fully examine the law and the circumstances to ascertain how ^- '"■ C"^™-
far the ground was good. Even among the sterner and wealthier Cockle O.J.
nations of antiquity they would go past the grounds on which a
man was alleged to be a slave if any such question did arise,
and it would have to be shown how far such slavery arose ; and,
as far as I am aware, it would be the result of capture in war,
or for some crime a man might be adjudged to slavery, or for
debt ; or again, in some of those parts of the world parental
authority might empower a father to make his son a slave, or
there might be a contract by which a man might become a slave,
or a custom — such, as I hope, sprung up in the colonies in spite
of the Common Law of England. There may be so many origins
to restraining the liberty of human beings, but to which of these
sources could the right of anyone be traced to sail out of the port
of this colony, and act as these persons have done to these people
of the Southern Ocean ? The state of the law might have escaped
notice at home ; but it ought not to escape notice here. In
England these matters were comparatively unimportant. The
persons whose rights were torn away were for the most part from
the coast of Africa, a long hne of trade across portions of the
ocean through which no man went except engaged in the nefarious
and cruel traffic. Ordinary persons at home were not likely to
be depending on barbarous treaties or the like ; but here it is a
very different question. This trade is carried on across the high-
way through which much of the commerce of these parts passes,
and along which, as time rolls on, probably more of it ■will pass,
and in which are islands inhabited by tribes, or nations — or call
them what you will — of the very class of persons brought under
our notice in this case ; and if once amongst these nations an
opinion should get abroad that our law proceeded upon principles
so inhuman that their rights could be violated with impunity by
any man who may choose to sally forth to outrage them, I say that
the safety of commerce itself and the blessings it maintains — the
safety of our fellow-subjects and fellow-colonists — would be
endangered ; and I think that in saying this I am only drawing
an inference that the Common Law itself would draw. It is not
on any narrow or technical principle that I base my opinion
that this conviction should be sustained. I think that the cases
decided upon the point of slavery are valuable and important,
but still in this particular case I cannot help thinking that there
is a strong bias, not, I hope, affecting the Court consciously,
but we must remember that different views may be entertained.
70
QUEENSLAND JUSTICE OF THE PEACE.
B. .;. CoATH. and we must expect to find different views prevailing there.
SooklTc.J. Taking a general view of the case, we cannot do otherwise than
affirm the conviction. I had some doubts as to the meaning of
kidnapping, but Mr. Justice Lutwyche threw out an observation
which removed the difficulty. Of course, we decide the case
simply as it comes before us, and therefore the conviction must
stand.
Lutwyehe J. LtTTWYCHE J. : I adhere to my ruling at the trial, and I think
the direction I gave the jury was right. I told them that if they
were satisfied that these nine islanders, or any of them, had been
taken on board and carried away to another place against their
will, the charge of kidnapping had been made out. One form
of kidnapping is steaUng and carrying away a man — not any
British subject, not any civilised man, but any human being —
man, woman, or child, and if so, the Common Law of England
will undoubtedly apply to the offence of which the defendant
has been found guilty, as kidnapping. It has been said that
there are no instances of a case of this kind having been brought
before the English Courts, and the cases referred to are principally
cases of abduction, which is a taking or carrying away, sometimes
with, and sometimes against, the will of the party, and in these
cases the concealment of the person was the main ingredient of
the charge. But I think that although no instance has been
cited, and perhaps none can be found, in which a charge of this
kind has been made before the English Courts, yet that does not
affect the Common Law, which says to the subjects of England
you shall not, at your peril of fine and imprisonment, take,
steal, or carry away any human being. And yet men are found
to sail forth from a port of this colony, and seize and carry away
certain persons found on the high seas — they are called islanders,
and whether they are civilised or not matters not. They have
a right to Uberty, which is inherent in all human beings, although
at times that inherent right has been taken away by force. But
we have nothing to do with that ; we must assume that at the
time these men were taken they were freemen, and that being
so it is an offence on the high seas by persons subject to the juris-
diction of the British Courts. It is an offence against the public
— a serious offence against the public in this case — for, as has
been pointed out, the consequence of our holding that this was
not such an offence as contemplated by the Common Law, would
be a lasting prejudice to the position of England, and the welfare
of the colonies which form her empire. If we were to hold that
CEIMINAL EEPOETS, 1860-1907.
71
men sailing from these ports were able to make these excursions,
and treat persons whom they find on the high seas in the same
way as these islanders, we would have a league of nations formed
against Great Britain and her dependencies ; and it would be
impossible, if we were to maintain such a principle, to uphold
the position which Great Britain at this time happily occupies.
I will not say I regret, because I think justice has been done ;
but I may say that I should not have been surprised if the heavier
charges which would have been attended by graver consequences,
had been brought against the defendant in this case. There
can be no doubt upon the facts set out, that robbery and depre-
dation on the high seas were committed, and robbery and depre-
dation amount to piracy. The defendant may, therefore, think
himself fortunate that he was tried on the lighter charge, and
sentenced to only five years' imprisonment and a fine of £50,
instead of being tried for the graver offence, for which he might
have been sentenced to penal servitude for Ufe. I have nothing
further to add. I have only to repeat that the direction was
right, and I think the conviction ought to be affirmed.
Conviction affirmed.
Solicitor for defendant : R. K. Macnish.
B. V. COATH.
Lutwyche J.
[In Banco.]
EMMERSON v. CLARKE.*
[3 S.C.R. 76. — Note. — Re Haughton, cited in toot note, was also reported in 5 S.C.R.
53, and is reprinted herein, post. See also Millis v. Kiefer (10 Q.L.J. 142,
post), and CUSord v. Wliite (4 Q.J.P.R. 132, 1910, St. R. Qd. 364).]
Cattle Stealing Prevention Act (17 Vic, No. 3), s. 61 — User^
Tresspass — Prohibition — Penalty — Objection not taken in Court
below — Costs.
To constitute an " user " under s. 6 of 17 Vic, No. 3, there must be an employ-
ment of the animal taken for the purposes of profit, convenience, or pleasure. The
intent is immaterial. A person might be brought within the provisions of the Act
without evidence of » " taking."
In re Bowman (6 S.C.R. (N.S.W.) 15), questioned.
Application on behalf of Daniel Ralph Emmerson to make
absolute a rule nisi calhng upon Francis Clarke, Frederick William
1872.
9th, ISth
September.
Cockle a.J
Lutwyche J.
* Followed in Be Haughton (1 Q.L.R. (Pt. II.) p. 53),
t The Criminal Code (63 Vic, No. 9), s. 445
72 QUEENSLAND JUSTICE OF THE PEACE.
Emmeeson v. Myles, William Clarke, and Frederick Kilner, justices, and Norman
Claeke. shadwell Campbell Berry, informant, to show cause why a prohibi-
tion should not issue restraining further proceedings on an order
made by the said justices at the Police Court, Bowen, convicting
the appellant of unlawfully using cattle contrary to the pro-
visions of s. 6 of the Act 17 Vic, No. 3, and why Berry should
not pay the costs occasioned by the proceedings on the grounds
(1) that there was no evidence of any using of the cattle within
the meaning of The Cattle Stealing Prevention Act ; and (2), that
certain of the justices who adjudicated in the matter were not
present during the whole of the trial. From the affidavits in
support of the rule it appeared that Daniel Ralph Emmerson,
the proprietor of Proserpine run, was summoned on the informa-
tion of Berry, the superintendent of Crystal Brook run, which
adjoins Proserpine, under s. 6 of 17 Vic, No. 3, for taking and using
26 head of cattle. Part of the evidence — the examination in
chief — of Berry was heard before Francis Clarke, R. S. Warry,
and F. W. Myles on the morning of 9th of April, and at 1 o'clock
an adjournment took place for an hour. When the Court resumed,
Warry did not sit again in the case, but Wilham Clarke and
Frederick Kilner took seats on the Bench, and although the
evidence taken before the adjournment was not re-sworn or
taken afresh, they adjudicated in the case. From the evidence
adduced at the hearing it appeared that, on the 31st of March
previous. Berry found in the yards of Crystal Brook some cattle
which were claimed by William Emmerson, son of the defendant,
and 26 head belonging to Mr. Holt, the proprietor of Crystal
Brook. The cattle claimed by William Emmerson — about 25
head — had been placed there by Berry's permission. About
sundown the same day the defendant, D. R. Emmerson, came
to the yards with two men and said he had tracked some cattle,
which had been stolen, from Proserpine to Crystal Brook yard,
and that the animals in the yard were the same. Berry said
some of the cattle were his, and some were claimed by Wilham
Emmerson, but the defendant claimed them as having been stolen
from his run. After some conversation Berry told him to draft
out the cattle he claimed, but the defendant said it was too dark
to draft then, and he would take the lot. He then threw down the
rails and told his men to drive the cattle out. Berry called upon all
present to witness that he was taking the cattle forcibly. Defend-
ant drove the cattle away, and as he did so he said, " I will be
responsible to Mr. Holt for all cattle of his that are here." Berry
CRIMINAL REPORTS, 1860-1907. 73
replied that he had committed an illegal act, and would take Bmmekson v.
Clarke
proceedings against him. On the following day Berry saw some
of the cattle at Proserpine, and defendant asked him to take
possession of them, which he refused to do. On the same day
he received the following letter from the defendant : — " There
has been some cattle illegally driven off Proserpine run, and as
soon as I heard of it I got my horses and tracked them to Crystal
Brook yards, where I took possession of them, and brought them
to Proserpine. The following morning I found there was some
of your weaners with them, and by your man's assistance we
drafted them, and I now send them back to Crystal Brook. In
coming up to Proserpine last night we lost some owing to the
darkness. I have sent my men to look for them. I shall be
obUged if you will assist them, and let me know if there is any
more of our cattle on Crystal Brook run. P.S. — I shall be muster-
ing several more days, and request you to send a man up to assist
collecting the remainder of your cattle." Berry subsequently
laid an information against defendant, and obtained a warrant
to search for the cattle belonging to Mr. Holt. He found 14
head and a calf, but not the others. There was a dispute going on
about agistment between the defendant and William Emmerson,
who drove the cattle he claimed and some of Holt's from Proserpine
into Crystal Brook yards. He had no permission to remove the
cattle from Proserpine. It appeared from the evidence of Daniel
Emmerson that he and defendant and another man drove the
cattle claimed by William Emmerson out of th? yard, and the
others accompanied them, and were not taken voluntarily or
intentionally. It was too late to draft them, and they could
not help the others following. The amount due for agistment
had not been paid when William Emmerson took the cattle off
Proserpine. The Bench found the defendant guilty, and inflicted
a penalty of £3 per head — amounting to £78 — and £11 costs and
expenses.
Affidavits in reply were read, from which it appeared that when
Wm. Clarke and Frederick Kilner took their seats on the Bench
the evidence of Berry, which had been previously taken, was
read ; and after his cross-examination the whole of his evidence
was read over, and he stated that it was correct. It was also
stated that the Justices were unanimous in their decision.
Lilley Q.C. and McDevitt, for the appellant, moved the rule
absolute.
Blake Q.C, for the informant. The conviction was right..
74
QUEENSLAND JUSTICE OF THE PEACE.
Emmebson v.
Clabke
Lutwyche J.
The defendant went after the cattle for the purpose of retaking
them because the agistment had not been paid ; but he had no
right to do, because a person could not have a lien on cattle for
agistment. Even as far as William Emmerson's cattle were
concerned, defendant had no right to interfere, because they were
in possession of the owner. (Plunkett, p. 67, note (a) ; In re
Bowman, 6 S.C.R. (N.S.W.) 15 ; B. v. Frew, 7 S.C.R. (N.S.W.)
111). As to the proceedings before the Magistrates, it was
sufficient if the whole of the evidence was heard before two justices,
Bramston A.O. : The magistrates were unanimous. Courts are
unwilhng to inquire into the votes of justices. (Penny v. Slade, 5
Bing. N.C. 469, 8 L.J.C.P. 221 ; B. v. J J. of Leicestershire, 1 M. & S,
442, 14 R.R. 494). The defendant's conduct closely approached
a breach of the peace.
Lilley Q.C. : According to the Act, if therewas a taking without
a using, there could not be a conviction, There must also be a
dishonest object or purpose. The cattle might be taken by
accident, unintentionally, or under a claim of right.
C.A.V.
13th September, 1872.
Lutwyche J. : The rule nisi was moved for on two grounds.
First, that there was no evidence of a user by Emmerson of the
Crystal Brook cattle ; and, secondly, that the case was not heard
whoUy and throughout by all the justices who signed the con-
viction. With regard to the second point, we are both of opinion
that it cannot be sustained ; first, because there were two justices
who heard the case from end to end, and according to s. 6 of
2''h,e Cattle Stealing Prevention Act a conviction may be by any
two justices of the peace in Petty Sessions assembled ; and,
secondly, because if the objection that the whole case was not
heard by all the justices was not taken at the time, it appears
from authority that, although the witness was not sworn in the
presence of the other justices — in this case the three other justices
— nevertheless, his evidence would not be open to rejection.
It appears that when a witness is not sworn on a trial, and the
objection has not been taken at the trial, that the person against
whom the verdict is found, and against whose interest the evidence
is taken, is not entitled on that ground to a new trial ; and we
think therefore that, on both of these grounds, that the second
objection cannot prevail. With regard to the first objection,
I am of opinion that there was no reasonable evidence from which
CEIMINAL REPORTS, 1860-1907.
75
the justices who heard the case, and who convicted Emmerson,
could infer that there had been a user by Emmerson of the
Crystal Brook cattle. The Act under which the charge was
brought against Emmerson, like most Acts that were passed
in the earlier Legislative days of the parent colony, is difficult
to construe according to the ordinary rules of construction which
are applied to legislative enactments ; but in the present case
I think we may see our way very clearly to the conclusion that
Emmerson has not brought himself within the penal provisions
of s. 6 of the Act. The penalty under that section being only for
using it is clear there must be evidence of user. Now, it may be a
matter of some difficulty to say what is evidence of user, but in
most cases referred to by the Act there would be evidence from
which a user might be inferred. In the first place the Act says :
" If any person shall take, use, or in any manner work any cattle ; "
and it is clear that " cattle," as described in the second section,
could not be worked without being used, and the penalty in the
sixth section is confined to cattle that are used. The second
section, in defining the meaning of " cattle," says it shall extend
to and include horses, mares, filUes, foals, geldings, colts, bulls,
buUocks, cows, heifers, steers, calves, sheep, lambs, goats, pigs,
mules, and asses. Many of these are animals of draught or burden,
and some, which are not animals of draught or burden kiay, never-
theless, be used within the meaning of the sixth section. Sheep,
for instance, might be shorn, and in that case it would be a user.
It might require some ingenuity to determine how pigs might
be worked or used (unless actually appropriated) , though they
might be taken. But I think, in respect to all the other animals,
there might be a user, though not perhaps a working, as in the case
of sheep or milch cows, which might be used by being milked.
The question then arises : Was there any evidence given before
the justices from which they could infer that there was a user of
Crystal Brook cattle ? It appears from the evidence that these
cattle, together with some twenty-six head which had been pre-
viously on Proserpine run, had been tracked from that run to Mr.
Holt's yard at Crystal Brook, and that Emmerson went to that
yard at night, and under a claim of right to the Proserpine cattle,
ordered his men to let down the rails and drive the Proserpine
and Crystal Brook cattle away. That is all that appears from the
evidence given on behalf of the prosecution, and I confine myself
to that, because we do not sit here to try the case over again,
or to determine whether the justices might not, if they had heard
Emmerson v.
Clakke.
Latwyche J.
76
QUEENSLAND JUSTICE OP THE PEACE.
Emmebson v.
Clare;e:.
Lutwyohe J.
the whole of the evidence, have safely arrived at a different
conclusion. It is enough if we can gather from any of the evi-
dence that there was sufficient to warrant the justices in arriving
at the conclusion that the cattle had been used. Now, in the case
referred to by the learned Attorney-General and Mr. Blake, the
Supreme Court of New South Wales upheld the direction of Judge
Meymott that if the cattle were driven away without the owner's
consent, even if only for the purpose of inducing other cattle
to go quietly, that would be a user ; and I am far from saying
that there might not be cases in which driving away a stranger's
cattle for the purpose of enabling others to be driven quietly,
or that cases would not arise in which such a taking would be
a user. According to my construction of the Act, to constitute
a user there must be an employment of the animal taken for the
purposes of profit, convenience, or pleasure. Intent, I take to
be immaterial. It does not seem to me to be at all within the fair
construction of the Act that there should be any intention, honest,
or dishonest. The act is sufficient if it be for the purpose of ob-
taining profit, or of certain convenience to the person taking the
animal, or for his own pleasure or amusement. Bilt it does
not seem to me in the present case Emmerson took the Crystal
Brook cattle either for his profit, or his convenience, or his pleasure.
It was too dark, as the evidence shows, to draft the cattle,
and he was anxious to get his own cattle, or those he claimed
as his own, home as soon as he could. Now, they were Proserpine
cattle, and certainly they would not require the assistance of the
Crystal Brook cattle to enable them to find their way back to the
run from which they had been taken. There could have been no
inducement operating on the mind of Emmerson to make him
take the Crystal Brook cattle, and it appears that at the time
he offered to be responsible for all Mr. Holt's cattle that were
there. So far, then, from being a source of profit or convenience,
or pleasure to him, he would have been much better without the
Crystal Brook cattle than with them. He took no particular
pains to keep them together, for eight of them were missed on the
road before arriving at Proserpine Station, and it seems to me
that the driving away of the Crystal Brook cattle was incidental
only to his desire to re-obtain possession of the cattle he claimed
as his own property. I think, therefore, there was no reasonable
evidence from which the justices could come to the conclusion
they did come to. I observe that in Bowman's Case (6 S.C.R.
(N.S.W.) 16) the Court seemed to have thought that in order to
OEIMINAL REPORTS, 1860-1907.
77
bring a person within the provisions of the sixth section, there
must be a taking as well as a using. A cow, in that particular
instance, was found on the run, and was only milked, and they
considered the conviction ought not to have been made, but I
confess that if a case of that kind should come before this court,
I should pause before I came to the same conclusion. I think
the proposition is laid down much too widely. I think a person
might be brought within the provisions of the Act without a
taking at all ; for instances have occurred, and may occur again,
where the services of a valuable entire or bull have been obtained
without taking the animal, simply by taking down a portion of the
fence of the paddock in which they were closed, and letting in
cows or mares — a very serious offence, and one which I hope will
be severely punished when it is proved. I think in that case,
without a taking, such a using would be within the meaning of
the section. Without going further at present — because it may
be expedient to consider in what way this appUcation should be
dealt with — I think in justice the prohibition ought to issue,
but as a matter of pure justice only — strict justice on a point
of law, because I cannot conceal from myseK that the conduct
of Emmerson was quite unjustifiable. He committed a wilful
trespass, and was guilty of conduct which almost amounted to a
breach of the peace, and certainly tended strongly to provoke
an offence of that kind. I do not consider that the applicant
is at all entitled to indulgence or anything like the favourable
consideration of the Court. As a matter of strict law, I think he
is right in this application, and therefore the prohibition should
issue. It might perhaps be better for him to allow the conviction
to stand. We have power to make him pay costs notwithstand-
ing that we have directed the prohibition to issue, .and we must
do what we think is fair and just under the circumstances of the
cases. On that point I shall, in conjunction with the learned
Chief Justice, reserve my decision as to the particular way we
will deal with the costs or the return of the money, which is op-
tional. In Bowman's Case, the fine having been paid and distri-
buted, the Court refused to make any order as to the return of the
money, but they ordered the prohibition to issue.
Cockle C.J. concurred.
The prohibition was allowed ; the question of costs and the
return of the money reserved.
18th September.
Cockle C.J. : This conviction was the unanimous decision
Emmebson v.
Cmbke.
Lutwyohe J.
Cookie C.J.
78
QUEENSLAND JUSTICE OF THE PEACE.
Emmbeson )■.
Clarke,
Cockle C.J.
of four justices, who, in our opinion, rightly heard the case through-
out ; but on a strict interpretation of the law, and with no merits
that we can see, the defendant has come before us to reverse the
proceedings. He has not come simply to relieve himself from
the burden inflicted on him, but, in the first place, he prays costs
against the prosecutor ; he makes an imputation against one of
the justices ; and he raises one unfounded ground of appeal.
Now, being of opinion that the conviction could not be sustained
on the evidence, we must, of course, relieve him from the conse-
quences of it ; but he has no claim to our consideration on the
question of costs. We cannot make him pay the costs on the
whole of the rule, because it would be unjust to say that he should
pay the costs of relieving himself from a judgment which cannot
be sustained ; but so far as the form of the rule is concerned,
considering that he had brought persons before us who would
otherwise have refrained from coming here, we think that the
rule must be made absolute. He will, of course, get no costs,
and he will pay the costs of William Clarke, and he will also pay
the respondent Berry and the justices the costs occasioned by so
much of the affidavits as relate to the second ground of the rule.
The penalty and costs must be returned, and the conviction
must be quashed.
1873.
15th October.
Ltitu-yche J.
[In Chambers.]
R. V. KELLY.
[ 3 S.C.B. 199.— Note.— Ss. 27 and 28 ot 35 Vic, No. 4, are repealed, see now ss.
447 and 448 of Criminal Code.]
The Brands Act of 1872 (35 Vic, No. 4), ss. 27, 28, 35— Wilfully
branding — Evidence of owner shif.
A registered brand is prima facie evidence of ownership for the prosecution, but
is not to be used for evading a prosecution.
Section 27 of The Brands Act of 1872 applies to all cattle, branded or unbranded,
and it is no defence to a prosecution under that section to say that the defendant
had made himself amenable to the provisions of s. 28.
Application for an order nisi for a writ of prohibition against
G. W. ElUott, Police Magistrate, Toowoomba, and John Hegarty,
of Stoney Pinch, near Toowoomba, farmer.
Hely in support of the application.
The facts of the case were as follow : — On the 3rd of October,
CRIMINAL REPORTS, 1860-1907. "79
Thomas J. Kelly was charged before the Police Magistrate of E. d.^Kelly.
Toowoomba, on an information laid under s. 27 of The Brands
Act of 1872, with wilfully branding a heifer, of which he was
not the rightful owner, with his registered brand. John Hegarty
swore that the heifer in question was his property, and that it
bore his brand JH on ribs and No. 2 on the rump on the milking
side. Two months ago he missed this heifer and another steer,
but on October 26 she came back, and he then noticed that
she had the brand TKO over his (Hegarty's) No. 2, and that she
had been newly ear-marked. This brand he discovered to be
defendant's registered brand, and the next day he went to his
place and told him that he had made a mistake in branding the
heifer. Kelly said it must have been a great mistake if he had
done so, and that he would give Hegarty two unbranded ones
if his (Hegarty's) brand was found on the heifer, together with
his (Kelly's). Hegarty's ownership of the heifer was also sworn
to by John Quinlan, farmer, Gowrie Creek, and John Curtis,
farmer, below the Range.
For the defence, evidence was adduced to show that the heifer
in dispute was remarkably like one possessed by the defendant,
.and that Hegarty's brand was very faint and dim. Robert
Macarthy, who was frequently in the defendant's employment
•during the last seven years, swore that he had assisted Kelly
in putting his registered brand, on the cow eight months ago,
and also his ear-mark. At that time no former brand was to be
seen on the heifer.
Hely stated that the information was laid under s. 27 of The
Brands Act, which enacted that " If any person shall wilfully
brand any stock of which he is not the rightful owner or shall
wUfuUy cause direct or permit any stock of which he is not the
owner to be branded with his brand such person shall on con-
viction for every such offence in a summary way forfeit and pay
any sum not exceeding £50." The Magistrate had exceeded his
jurisdiction, as the evidence clearly showed that the defendant
had not wilfully branded the heifer, knowing her to be not his
own, for he had really believed her to be his property. The
word " wilfully " meant intentionally and with premeditation.
If there were any offence at all committed by the defendant it
was against s. 28 of the Act, and not s. 27. Section 28 enacted
" That any person who shall wilfully blotch deface or otherwise
render illegible or alter any brand or mark upon stock or permit
any such brand or mark to be blotched defaced or otherwise
so QUEENSLAND JUSTICE OF THE PEACE.
E. V. Keixt. rendered illegible or shall wilfully cause direct or permit any
stock to be marked on the ear or dewlap shall on conviction
for every such offence forfeit and pay any sum not exceeding
£20 for every head of stock " so treated. The brand of the defend-
ant, it was sworn, was put on over Hegarty's No. 2, and also
the defendant's ear-mark was put over the plaintiff's. The
evidence did not therefore support the information, inasmuch as it
was laid under the wrong section ; and furthermore, the defend-
ant was fined £30, whereas the highest penalty allowed by s. 28
was £20. Again, s. 35 provided that for the purpose of any
prosecution or action under this Act, any registered brand upon
any stock shall be prima facie evidence of the ownership of such
brand, and of the stock on which such brand is imprinted. It
was proved that Kelly's was the only registered brand on the
heifer, and according to this section that should be taken as
prima facie evidence that she belonged to him.
Lntwyehe J. Ltjtwyche J. : In the first place there was sufficient evidence
on the face of the depositions to show that the heifer belonged
to Hegarty, and also that Kelly had branded her with his brand.
As to the meaning of the word " wilful," it is hard to say what
was the state of the defendant's mind when he committed the
act, and the decision of that question must, I think, be left to
the Bench, once it was proved that the act had been committed
by him. Again, they had the defendant's statement to Hegarty
that the heifer was his (Kelly's) property, and that might be
taken as evidence of his wilful commission of the offence. As
to the registered brand being taken as prima facie evidence of
ownership, that applies in cases where it is necessary for the
support of a prosecution, but it is not to be used for the purpose of
evading a prosecution. Otherwise it would be offering a premium
for cattle-stealing, because any man could go and take a cow and
put his own registered brand over the old brand, and it would
then have to be held that the cow was prima facie his property.
Section 27 of the Act applies to all cattle, branded or unbranded,
and furthermore, it is not a sufficient defence to a prosecution
brought under that section, to say that the defendant had made
himself amenable to s. 28.* For these reasons the application
must be refused.
Solicitor for the applicant : Hamilton.
* See Curran v. Dowzer (2 Q.L.J. 45).
CEIMINAL REPOETS, 1860-1907.
81
BEGIN A V. PORTLEY.
[3 S.C.R. 202.— Note.— See also s. 628 of Ciimlnal Code.]
Criminal law — Practice — Illness of a juror — Discharge — 11 Vic,
No. 20, s. 23.*
When a juror has been taken ill and is unable to act, and either party objects to
a new juror being added in his place, the jurors must be discharged, and the cards
which bear the names of the jurors who have been discharged from giving a verdict
must be returned to the box, and a new jury must be drawn from the box, leaving
the Crown and the prisoner to exercise their right to challenge as before.
Crown Case Reserved.
The facts appear in the judgment.
Ltjtwyche J. : This matter comes before the Court upon a
case reserved from the last criminal Assize under the provisions
of the Act 13 Vic, No. 8 (Call. 1937). The information charged
the prisoner with stealing, while servant to Richard Gill, goods,
the property of her master. A large proportion of the 48 jurors
returned on the jury panel were challenged, several being desired
to stand aside by the Crown, while on the part of the {)risoner
the full number (20) of peremptory challenges allowed by law
in cases of felony were exhausted. A full jury having been at
length obtained, the trial proceeded, but while a witness was
beiQg examined for the defence, one of the jurymen was seized
with an epileptic fit, and was carried out of Court in a state
of insensibiUty. After some time had elapsed it was stated to
the Court by a surgeon who had attended the ailing juryman that
although he was somewhat better it was doubtful whether he
might not be visited by another fit if he were required to act as
a juror during that day, whereupon the judge of assize said he
was of opinion that the jury should be discharged from giving
a verdict, and the jury were so discharged accordingly. The
Crown Prosecutor suggested that, in order to save time, a new
juror might be added to the eleven who had heard the evidence
already given, and B. v. Edwards (Russ. & Ry. 234, 4 Taunt.
309, 13 R.R. 601), was cited. Mr. Blakeney, however, who
was counsel for the prisoner, refused to consent to this mode
of proceeding, unless accompanied by a renewal of her right of
peremptory challenge, which the judge refused to allow, and
ruled that the trial should proceed with a fresh juror added to
the original eleven, and that the prisoner's right of challenge
Supreme Court.
New South Wales,
Moreton Bay..
1859.
5th July.
Lutwyche J.
Lutwyche J.
* See now 31 Vic., No. 34, s. 22.
82
QUEENSLAND JUSTICE OF THE PEACE.
Regina v.
POBTLEY.
Lutwyehe J
should be confined to the person or persons called to complete
the jury. Another juror having been called, and having answered
to his name, he and the original eleven were all sworn, and the
prisoner was given in charge to them. After the new jury had
been impanelled they were locked up for the night in a room
at one of the principal hotels, and the trial was resumed on the
morning following, when, by consent of counsel on both sides (but
without waiving the objection to the disallowance of the right
of challenge) the evidence which had been given on the previous
day by the witnesses for the Crown was read over to each of them
by the judge from his notes, and each was asked, after having
been re-sworn, whether his evidence had been correctly taken
down, and whether his evidence was true. The trial then pro-
ceeded, and the prisoner was convicted. The question of law
for the opinion of the Court in Banco is, whether the prisoner
was rightly convicted, or whether there was a mis-trial under
the circumstances above set forth. Upon an examination of the
printed reports, it appears that the point raised by this case
has never yet been determined by a judicial decision of any of
the EngUsh courts. The practice, however, as might be inferred
from R. V. Beere (2 M. & Rob. 472) would be in favor of the general
right of challenge as claimed, but neither from that case nor
from R. V. Edwards (supra) can it be collected that the privilege
would have been allowed if the prisoner, as in the present instance,
had previously exhausted the full number of his peremptory
challenges ; on the contrary, it would rather seem from the
report of R. v. Edwards, in Taunton, that such a right would
have been denied by the Court, for Mr. Baron, Wood was there
of opinion that the opportunity for peremptory challenge had
gone by, and that the prisoner could only challenge for cause
shown. It is unnecessary, however, to dwell upon speculative
probabilities, because the Court thinks that the question is con-
cluded by the language of the colonial Jury Act, which was not
referred to at the trial (11 Vic, No. 20, Call. 1767). Section 23
enacts that upon calling for trial any criminal issue the clerk of
the Court shall in open court put pieces of card furnished by the
sheriff into a box, and shall draw out therefrom the said pieces
of card, one after the other, until twelve men shall appear without
just cause of challenge, which said men, being duly sworn, shall
be the jury to try such issue. It then provides that the pieces of
cards containing the names of the jurors so drawn and sworn as
aforesaid shall be kept apart by themselves until such jury shall
CRIMINAL REPORTS, 1860—1907.
8S
liave given in their verdict, or shall he discharged, and that then
the said 'pieces of card shall he returned to the hox, there to be k^t
with the other names remaining undrawn, and so toties quoties
so long as any issue remains to be tried. There is indeed an
additional proviso authorising the trial of any criminal issue
with the same or some of the same jury previously drawn to try
any other criminal issue. But it is to be noticed, in the first
place, that the jury which had been previously drawn was not
drawn to try any other issue than that joined between the Crown
and Bridget Portley ; and, secondly, that such a trial can only be
had where no objection is made on behalf of the Queen or any
other party. And as Mr. Blakeney did not object to try the issue
joined between the Crown and the prisoner, except upon conditions
which the judge of assize had no power to grant, the Court is of
opinion for both of these reasons, that the course of proceeding
adopted at the trial was irregular, and that as a mistrial has con-
sequently taken place, a new trial must be granted. The practice
which must be observed in future in similar cases wiU be to return
to the box the cards which bear the names of the jurors who have
been discharged from giving a verdict, and to draw from the box
a new jury, leaving the Crown and the prisoner to exercise their
right of challenge as before.
Regin^ V,
PoRTLIiY.
Lutwyehe J.
[In Banco.]
REGINA V. HOSKINGS.
[4 S.C.R. 24.— Note.— See s. 350 of Criminal Code, and R. v. Schloss and Maguire
(8 Q.L.3. 21, post).]
Indecent assault — Evidence of non-consent — Witness.
On a charge of indecent assault, evidence of want of consent ought to be given,
but where it is shown that the person assaulted is incapable of giving consent, it is
not necessary to call such person as a witness.
Cbown Case Reserved by C. H. Blakeney, Judge of the
Western District Court at Dalby.
The prisoner, WilUam Hoskings, was tried at Dalby for com-
mitting an indecent assault upon a girl, aged sixteen, named
Jane Howe, on October 25th last. The girl Hved with her
mother, and had been left by her, on the day in question, in the
kitchen of their house. On returning in about an hour she
found the prisoner in the act of committing the offence for which
1873
8th December
Cockle G.J.
Lvtwyche J.
84 QUEENSLAND JUSTICE OF THE PEACE.
Kegina r. ]^g jja^^ been tried. On seeing her he immediately ran away :
Hof KINGS. ° ■' "■
but she gave information to the pohce, and he was arrested
the following day and identified by her. Upon his arrest by
Constable Brady he was told the charge against him, and
he then said he had not done anything but what he had paid for.
Dr. Howlin, a medical man, swore that the girl had been under
his care for a very long period ; that she was subject to epileptic
fits ; was of a very weak intellect, and he did not think that she
was capable of consenting or resisting the cornmission of the
offence. In his opinion, however, she was capable of appreciating
the difference between truth and falsehood. Mr: Chubb, the
solicitor for the prisoner, asked the Judge to withdraw the case
from the jury, on the ground that there was no evidence of
want of consent. This he refused to do, and, in his summing
up, told the jury that if the prisoner exposed the person of Jane
Howe it was sufficient to sustain the information. On the
question of consent, the jury received no direction, the Judge
holding that that was a point of law. Mr, Chubb objected
to the Judge's summing up ; first, because the jury were not
told to acquit the prisoner on the ground of want of consent not
being proved ; and, also, because Jane Howe was not called,
she being a competent witness. The questions reserved for the
consideration of the Court were — (I) Was the Judge right in
refusing to withdraw the case from the jury on the point raised
by the defendant's advocate ; (2) was the Judge right in refusing
to direct the jury to acquit the defendant on the ground that
there was no evidence that the assault was committed against
the consent of Jane Howe ; (3) ought the Judge to have directed
the jury upon the points and in the manner stated by the
defendant's advocate in his objections to the directions ?
Pring Q.C., for the prisoner : There must be some evidence
of want of consent. {R. v. Johnson, L. & C. 632). There is a
distinction between carnal knowledge and indecent assault in a
case of a girl under twelve years of age. {R. v. Fletcher, 1 C.C.R.
39; R. V. Beale, 1 C.C.R. 10).
Hely, for the Crown, argued that submission was not consent.
(R. V. Fletcher, 1 Bell 63 ; R. v. Lock, 2 C.C.R. 10). Here there
was evidence of weakness of intellect, some evidence of violence,
and the prisoner was a stranger. If there is no consent, and the
act is wrong, there is an assault. {R. v. Williams, 8 C. & P. 286 ;
R. V. Day, 9 C. & P. 722 ; R. v. Case, 1 Den. C.C. 580 ; R. v. Nichoh
R. & R. 130.)
CRIMINAL REPORTS, 1860—1907.
85
Pring, in reply. There might be such submission as implies Reoina «.
consent, and the circumstances pointed to that having been its
character in this case.
Cockle C.J. : It is no doubt competent for us to send back Cockle C.J.
'the case to be amended, a proceeding which we should adopt in
any case in which we thought it essential to the ends of justice ;
but here the substantial question is, whether there was any
evidence to go to the jury, and, as on that substantial point
we are against the prisoner, we do not think it necessary to send
the case back for amendment. Still less do we think it necessary
to criticise an isolated passage in the summing up, which, regarded
in connection with the whole of the Judge's observations, or
with the whole proceedings of the trial, might bear a different
interpretation to that which, at the first glance, it seems to bear.
We prefer looking at the points stated in the case for our con-
sideration, and confining ourselves to the questions raised by
those points. The learned Judge was called upon to withdraw
the case from the jury, which he refused, and, we think, quite
rightly refused to do. The specific grounds of objection to the
Judge's direction which followed were three in number — (1) That
the learned Judge should have directed an acquittal on the ground
that there was no evidence that the assault was committed
against the consent of Jane Howe. However valid such objection
might be in the ordinary run of cases, yet here we must remember
that there was evidence, with which it was for the jury to deal,
that the assaulted woman was a being incapable of giving consent,
and consequently the direction which the advocate for the prisoner
called upon the learned Judge to give was something equivalent
to this — that if the act was done against her consent, or that
if she was a person incapable of consenting, and that this was
an indecent, forcible, and wrongful act done upon her without
consent, then the jury might convict. What the learned Judge
was called upon to do was to regard the first branch of this
alternative, and to disregard the latter altogether. Consequently,
we think that in this particular case, in which there was evidence
of incapacity to consent had the Judge simply directed as he
was called upon to do, the jury would have been thereby misled
and the ends of justice would not have been advanced. The
second point was that he had omitted to direct the jury that
Jane Howe was a competent witness, and ought to have been
produced by the Crown to negative the presumption of consent.
Obviously here we think there was no duty incumbent upon the
QUEENSLAND JUSTICE OF THE PEACE.
Begina v.
hoskinos.
Cockle C.J.
Lutwyche J
Judge to give any such direction to the jury. The caUing or
non-calling of a witness either on behalf of the Crown or the
prisoner is a matter for observation only. There is the point
that the learned Judge ought to have directed the jury that they
must be satisfied that the assault was committed against the
consent of Jane Howe. This would have been a very proper
call to make upon the Judge had there been no evidence to show
she was incapable of giving consent. With regard to the three
points reserved for our consideration, I think we must determine
them against the prisoner. We think the learned Judge was
right under the pecuhar circumstances of the case in refusing to
withdraw the case from the jury on the point raised by the
defendant's advocate. He was also right, in our opinion, in
refusing to direct an acquittal on the ground that there was
no evidence that the assault was committed against the consent
of Jane Howe. If she were incapable of giving consent, there
was, in our opinion, a wrongful, forcible, and indecent act com-
mitted against her. I am therefore of opinion that the conviction
ought to be affirmed.
Lutwyche J. : I am of the same opinion. With reference to
the second direction, it has not been argued by the learned
counsel for the prisoner, but I, nevertheless, think it right to
express a strong opinion, that the learned Judge acted perfectly
right in not directing the jury that Jane Howe was a competent
witness, and ought to have been called by the Crown to rebut
the presumption of consent. I can easily understand the reason
that induced the learned counsel, who conducted the prosecution
on behalf of the Crown, to abstain from calling her. He might
have thought that it would imperil the case and defeat the ends
of justice, and knowing, as he did, that it laid him open to obser-
vation on the part of the advocate of the prisoner, and also to
observation, but observation only, on the part of the learned _
Judge, I think he exercised a very wise discretion in abstaining
from calKng her as a witness. I also think that the learned
Judge acted perfectly right in not directing the jury that she
ought to have been called to negative the presumption of consent,
for such presumption did not arise upon the evidence, if, as the
case went to show, she was incapable of consenting. I believe
that in ordinary cases evidence of want of consent ought to be
given ; but where it is shown that the person assaulted has no
will to exercise, and is, therefore, incapable of giving consent,
then I think it is quite sufficient to leave the case to the jury
CRIMINAL REPORTS, 1860-1907.
87
upon that evidence. That view has certainly been upheld in
all the cases quoted, except in the case of R. v. Loch, in which
Mr. Justice Brett rather qualified it. We say there was evidence
to show the incapacity to consent, and that might, therefore,
go to the jury as evidence of the act of assault. That appears to
me to be the true distinction, and reconciles all the cases which
have been brought before the Court. I also think that the
conviction ought to be confirmed.
Eeoina v.
hoskinos.
Lutwyohe J.
[In Banco.]
LONG V. RAWLINS.
[4 S.C.R. 86.]
Assault — Right to enter a church — Public worship — Trespass.
A person claiming to be a member of the Baptist Church wag prevented from
entering the church on a Sunday by one L., acting under instructions. A majority
of the Bench found L. guilty of assault, fined him, and placed on record their
opinion that the plaintiff, as one of the public, had a right to enter the church in
question.
Held, without deciding whether the complainant had a right to enter the church,
that there was evidence to support the conviction.
Semble, that the question whether a member of the public has a right to enter a
church for worship depends upon the rules of the church and its trust deed.
If a man be a trespasser, he can be sued for trespass in a court of competent
jurisdiction. He should receive notice to leave before he is ejected.*
Motion to make absolute an order nisi calling upon F. Rawlins,
Police Magistrate, and other Justices of the Peace, and Wilham
Langley, to show cause why the conviction against John Long for
assault should not be quashed, on the ground that the opinion and
decision of the majority of the Bench, and the conviction founded
thereon, was erroneous and contrary to law.
The complainant, WiUiam Langley, summoned John Long for an
assault, in an attempt to prevent his entrance to the Wharf Street
Baptist Church. Langley, in his evidence, stated that he was a
member of the Baptist Church. On Sunday, the 26th of April, as
he was walking up from the entrance gate to the building, the
defendant came to him, and, in a most ferocious manner, laid
hold of him, saying, " Did I not tell you not to come in here ? "
1874.
6th August.
Cockle C.J.
Lilley J.
Sheppard J.
*See Criminal Code, s. 207.
88 QUEENSLAND JUSTICE OP THE PEACE.
Long v. RiWLiNs. flg did not actually strike complainant, but began pulling and
tearing his clothes. The complainant offered no resistance,
and did not retaliate in any way. Whilst he was adjusting his
clothing the defendant went on very violently, saying that he
would murder the complainant but for the people about. He
gave no reason for his conduct. In cross-examination the
complainant admitted that he had been informed by letter that
he had ceased to be a member of the church, and three Sundays
before that he was forbidden to go into the church. The violence
arose out of the assertion by him of his right to enter the church.
James Swan, a senior deacon and one of the trustees, swore
that the doors of the church were thrown open on Sundays for
public worship, but could be closed if the church chose. They
were thrown open to the members in particular, but also to the
public if they behaved themselves. There were no pew rents or
registered sittings in the church, and the seats were in a manner
free. The defendant was stationed at the gate by the authority
of the church. A meeting was held, at which it was decided
to keep out the complainant as a disturber. It was necessary
to keep him out for the sake of common decency and propriety,
as his presence completely obstructed pubhc worship, and inter-
fered with the ceremony carried out by the pastor.
WilUam Moore, another trustee of the church, swore that he
would not interfere with anybody going into church to attend
public worship, and if a person were expelled the society, he
would not be interfered with attending the congregation meeting ;
but, if a person misbehaved himself whilst there, he would have
him put out. Henry George Cray, one of the deacons, swore
that he had noticed, on several occasions, the complainant's
conduct to be disorderly in the church. He was pertinaciously so,
and in defiance of remonstrance.
The majority of the Bench decided that the complainant had
a right, as one of the public, to enter the church in question, and
fined the defendant £2 and costs, or in default seven days' im-
prisonment. The Police Magistrate and one of the Justices
dissented.
Griffith A.G. and Pring Q.C. moved the rule absolute.
Blake Q.C. and Harding for Langley showed cause. The com-
plainant had a perfect right, as one of the public, to enter the
church, even if he was not a member. There was evidence that
other persons could go to the church, and nothing had to be done
previously to entitle them to admission. If Langley misconducted
CRIMINAL REPORTS, 1860-1907. 89
himself in the building, there was power to remove him. [Lillby ^°^'^ "• Rawlins.
J. By the trust deed the church is apparently limited to a par-
ticular society, now and hereafter assembling therein. It appears
to me the question of complainant's right of entrance does not
arise. This is a conviction for assault, and we have to say if
there was sufficient evidence to sustain it. There was nothing
to show Langley meant to interrupt.] Williams v. Glenister
{2 B. & C. 699, 4 D. & R. 217) ; Polkinhorn v. Wright (8 Q.B.
197 (206) ; Byerly v. Windus (5 B. & C. 1) ; Mainwaring v. Giles
(5 B. & A. 356) ; Lang v. Purves (8 Jur. (N.S.) 523, 10 W.R.
468, 15 Moo. B.C. 89) ; Wood v. Leadhitter (13 M. & W. 838) ;
and Detcham v. Bond (3 Camp. 524) were cited.
Griffith A.G. : If there was no right on the part of Langley to
enter, there was no evidence to show that any excess of violence
had been used in ejecting him.
Cockle C.J. : Some questions of importance were probably Cockle C.J.
intended to be raised, but are not raised by this order nisi, which
seeks a prohibition on the ground that the opinion and decision
of the majority of the Bench, and the conviction founded thereon,
was erroneous and contrary to law. Now, I think that this
Court ought not to disturb a decision simply on the suggestion
that it had proceeded on wrong grounds. So far as I understand
the entry of the proceedings, the opinion and decision not only
of the majority of the Bench, but of the whole Bench, was that
an assault had been committed, and that the conviction was
founded thereon. I can hardly say that the conviction was
erroneous and contrary to law, because, whether Langley was
or was not a trespasser at the time of the committal of the
alleged assault and battery, still there is evidence which the
magistrates may have believed, and on which they may have
acted, that more violence was used than the law would justify
on such an occasion. Moreover, it does not appear by necessary
implication that the conviction was founded upon this opinion,
of which so much use has been made in the course of the case.
The entry is : "A majority of the Bench are of opinion that the
plaintiff had a right, as one of the pubhc, to enter the church in
question." The reason for the insertion of these words — which
appear to have been put in on the suggestion of the learned
counsel for the defendant, the plaintiff not being represented by
counsel — might have been as suggested by my brother Lilley,
for sake of peace, or with the object of promoting an understanding
between the parties, or with the view of explaining why a merely
90
QUEENSLAND JUSTICE OF THE PEACE.
Long v. Bawlins. nominal penalty was not inflicted. That it was fixed at 40s,
Cockle C.J. was because they believed there was an infraction of a substantial
right. But it was a question which did not come before the
Court in a way enabling us to answer, and it would be going too
far for us to say that the decision of the Bench supported by
evidence should be disturbed because the magistrates had put
an opinion on the record which they could not say was purely law,
or one of mixed law and fact. For these reasons I think the
order must be discharged.
Lilley J. LiLLEY J. : I agree with the judgment which the learned Chief
Justice has dehvered that this order must be discharged, and I
think also with costs. We have nothing before us to enable us to
come to the determination that this opinion was the sole ground
for the magistrate's decision. Neither do I think have we
materials before us, even if they were so, to enable us to say that
their decision was actually wrong. There was some evidence from
which the Justices might infer — the evidence of Messrs. Moore
and Swan — that the rules of the society, for whose benefit this
trust deed was executed, entitled the public, under certain,
conditions, to enter that building for public worship. They
might, therefore, have come to that conclusion. It is impossible
for us to say whether they were right or wrong on the materials
before us. It is, moreover, wholly immaterial in this matter.
I will assume that the chapel being opened an invitation is
given to the general public to enter and worship. I will asume,
further, that they have power to say to any one individual in the
community, " All others may enter, but you are excluded from
that invitation." Yet, if a man presents himself, as Langley did,
is there a right to seize him, even if it is admitted that he was a
trespasser, and by threat and assault drive him back. I certainly
think not. I think we must hold, if it were only for the preserva-
tion of the public peace, that a warning must be given. For all
Long knew, Langley might have been going on an errand of
peace, because it was unknown to him that he was simply
asserting his right to enter. It would be a most dangerous thing
to hold that a man can assault a trespasser without previously
telling him to withdraw. My opinion is, on the evidence before
us, that the conviction was right. No doubt the parties wish
this question determined upon which the magistrates gave an
opinion, namely, whether one of the public has a right to go into
a church for the purpose of worship ; but that depends to a great
extent upon the rules of the society and the trust deed, which
CRIMINAL EEPORTS, 1860-1907. 91
do not appear before us. Neither do I think that this is the Lono v. Bawmnb.
proper way of bringing the point forward for a decision. If a Lilley J.
man be a trespasser let him be sued for trespass, and let the
question be determined by a Court of competent jurisdiction.
Sheppard J. ; I also agree with the decision. With regard Sheppard J.
to the right of the public to enter a church, the Magistrates have
given an opinion which probably they would have been glad to
have decided by this Court, but it is not necessary for the decision
of this case, and it does not seem to me that we are called upon
to give an opinion on a point on which a good deal can be said
for and against, and which is one of very great importance.
As to the costs, I behave Lord Wensleydale's dictum is the
correct one, that costs must not be imposed either as a punish-
ment or a penalty, but must follow as a consequence of unsuccessful
litigation.
Order discharged with costs.
SoHcitor for complainant : T. Bunton.
Sohcitors for appellant : Macalister cfc Mein.
[In Insolvency.]
In re LONG.
[4 S.C.R. 120.— Note.— Sections 208 and 216 ol 38 Vic., No. 5, are repealed, see now
ss. 530 and 698 o( Ciimiaal Code.]
The Insolvency Act of 1874 (38 Vic, No. 5), ss. 114, 208 (2), 216— 1875.
Committal of debtor for trial after examination under s. 114 — 28th May.
Transfer with intent to defraud. Lilley J.
Before exercising tlie power of committal of an insolvent under s. 216 of The
Insolvency Act of 1874, the Court must be satisfied that such a case has been made
out as would, if not broken down or answered by counter-evidence, justify a
probability of the insolvent's conviction by a jury.
Motion by the oflScial trustee for the committal of John Long ,
an insolvent, for trial for an offence against The Insolvency Act
of 1874.
At an examination of the insolvent under s. 114 he stated that
he had transferred certain land a few days before his adjudication,
having purchased the property with his sister's money. The
insolvent's brother had since, in the insolvent's presence, handed
92 QUEENSLAND JU&TICE OF THE PEACE.
In re LoNo. the transfer to the official trustee. All the other necessary facts
appear in the judgment.
Pring Q.C., for the official trustee, appUed under s. 216 for the
committal of the insolvent for trial for an offence against The
Insolvency Act of 1874. He referred to ss. 208 (2) and 216 of
the Act 38 Vic, No. 5.
Thynne for the insolvent.
Lilley J. LiLLEY J. : I think the power I am called upon to exercise is a
very summary one. Were I at once to commit the insolvent for
trial, he would, under this peculiarly-worded section, go from
this jurisdiction under the disadvantage of a preliminary judgment,
because the section states that should it appear to the Court that
the insolvent is guilty of the offence. I take it that what ought
to have been the wording of the statute — and what no doubt was
the intention of the Legislature — is that the Court should have
the power to commit the insolvent if a prima facie case shall appear
to have been made out against him after his examination. I shall,
therefore, in the first instance, before I can exercise such a power,
have to be satisfied that such a case has been made out as would,
if not broken down or answered by counter-evidence, justify
a probabiUty of the insolvent's conviction by a jury. The only
portion of the case which it seems to me has been proved against
the insolvent is the purchase and conveyance to his brother,
Daniel Long, of a cottage at Warwick. I now have only the
insolvent's own statement. Whatever may be the truth or
falsehood of that statement I have not to consider, but what will
be the probability of a jury convicting upon it. In the first
place the insolvent said he bought the property with the money
of his sister. The question arose whether he was acting for her
or her husband, if she were married ; but upon this subject the
Court is in the dark. It was said that the allegation concerning
the sister was false, and for this reason, that he transferred the
property to his brother after he had been served with a writ by
one of his creditors. That as it stands, if supported by some
other evidence, might have great weight with a jury. Then
there is the circumstance that the brother has in his presence
surrendered the transfer to the official trustee. I must say
there is a case of suspicion, and perhaps there is sufficient evidence
to justify me in holding him to bail to appear before a Justice of
the Peace, a course which, if strongly pressed, I will follow. At
the same time I may point out, if any additional evidence can be
CRIMINAL EEPORTS, 1860-1907.
9»
obtained, the insolvent can, at any time, be summoned before a
magistrate to answer for the offence, without the Court now
binding him over.
Pring Q.C. : 1 will not press for the insolvent to be bound over,
as I am not quite sure whether the additional evidence can be
obtained.
Solicitor for official trustee : Wilson.
In re Lono.
LiUey J.
[In Banco.]
R. V. JIMMY.*
[4 S.C.R. 130 ; 7 Q.L.J. N.C. 106.— Note.— R. v. Gomez, cited in footnote, was
reported in 5 S.C.R. 189, and is reprinted herein, post.]
Criminal Law — Piracy — Jurisdiction — Territorial waters — 7 Wm.
IV. and 1 Vic, c. 88, s. 2—12 and 13 Vic, c 96, s. 3.
A prisoner was charged with piracy on «, vessel lying within a line drawn from
one headland to another on the coast of Queensland, and between the mainland
and an island which had been annexed by that colony by proclamation.
Hdd, that the locus in quo of the alleged offence was within the territorial juris ■
diction of the colony, and therefore subject to the municipal law of the colony, and
that no act of piracy could be there committed.
Crown Case Reserved by Sheppard J.
Jimmy, an aboriginal, was tried at Townsville, on May 26th,
before Sheppard J. The first count of the information charged
the prisoner with having, on 9th June, 1874, with force and arms,
and upon the high seas, and on board the schooner " Albert
Edward," then lying in Challenger Bay, distant about three
leagues from the coast of the colony, piratically, unlawfully,
maliciously assaulted and wounded, with intent to murder,
Robert Mackay and Donald Henderson, for the purpose of enabling
him to steal the said vessel and her cargo.
The information was laid under s. 2 of 7 Wm. IV. and 1 Vic,
0. 88 (Pain & Woolcock's Statutes, 3138). The Crown Prosecutor,
at the instance of the Judge, elected to proceed in respect of the
wounding of Henderson. It appeared that the schooner, of
which Mackay was master, was sailing under the British flag,
and at the time of the commission of the offence alleged was lying
1875.
i!4th September.
Cockle C.J.
Lutwyche J.
Lilley J.
Sheppard J.
*E. V. Gomez (reported in Brisbane Courier), 1st June, 1880.
Code, ss. 81-82.
But see Criminal
94
QUEENSLAND JUSTICE OF THE PEACE.
B. V. JiMMT. jn Challenger Bay, off Palm Island, inside an imaginary line
drawn from one headland of the bay to another, and distant from
the island from a quarter to half-a-mile. There were from three
to four fathoms of water at the spot where the ship was lying,
and it was beyond low water mark. There was also another
island between Palm Island and the mainland, with a passage
between, through which any vessel could go. The vessel waB
lying on the mainland side of the island, and the mainland could
be seen from her deck. A proclamation in the Government
Gazette, annexing the islands within sixty miles of the coast, was
put in evidence ; and the Judge directed the jury that, although
the proclamation had the effect of making the island in question
a portion of the Colony of Queensland, it did not so constitute
it a part of the colony in the sense that, within a line drawn from
one headland to another of Challenger Bay, the crime of piracy
could not be committed, and he directed the jury that the vessel
■was in such a position that, in point of law, the crime of piracy
could be committed : but entertaining some doubts as to whether
in point of law, the proclamation had not the effect of rendering
Palm Island a portion of the " district or country " from which
it was divided by the sea, and whether the ship was not within
the " body " of the country or district, the Judge reserved for the
consideration of the Judges in Banco the question whether,
on the evidence, the ship was in such a situation that, in point of
law, the crime of piracy could be committed. The prisoner
was found guilty, and sentenced to death.
Griffith A.G., for the Crown, referred to 1 RusseU on Crimes (1865
Ed., p. 153), R. V. Cunningham (Bell C.C. 72), R. v. Bruce (K. & R.
243), R. V. Anderson (L.R. 1 C.C.R. 161), R. v. Mannion (2 Cox
C.C. 158), R. V. Curling (R. & R. 123), and the statutes 8 Geo. I.,
c. 24, s. 1, 18 Geo. II., c. 30, 39 Geo. III., e. 37, 46 Geo. III., c. 54,
12 and 13 Vic, c. 96, s. 3 ; 7 Wm. IV. and 1 Vic, c 88 ; Bacon's
Abridgement (Piracy), and Comyn's Digest (Admiralty) E. 3, 14).
Blake Q.C. for the prisoner.
Cockle C.J. Cockle C.J. : I think this conviction cannot be upheld without
going in the face of a statement made in Comyn, on the authority
of Bulstrode. It is there stated that "it is not piracy if the
attempt was made within a creek, port .... for that
would be a felony triable at common law." Now, tha scene of
the alleged piracy forms part of this colony — or, at any rate
was -within the " body " of the colony — for the island in question
CRIMINAL REPORTS, 1860-1907.
95
has been annexed by proclamation, and the locus in quo being
within a Une drawn from headland to headland was within the
jaws of the land. In annexing the island, this country must be
taken to have thrown over that island the protection of the
common law. It is not necessary to say whether the jurisdiction
of the Admiralty will or will not be excluded, because it by no
means follows from the fact that there is a concurrent jurisdiction
possessed by the common law and the Admiralty, that the offence
set out here is necessarily a piracy. There might be a concurrency
of jurisdiction by which the Admiralty could deal with alleged
offences occurring under the cognisance of the common law,
but it is not necessarily to be imphed that when jurisdiction
is concurrent, that means that the Admiralty is to deal with the
offence in one way, and the common law in another, and by such
a course of proceedings arrive at different results. Therefore,
as in the present case the locus in quo is within the municipal
law of the country, I am of opinion that the prisoner is innocent,
at aU events from piracy, and consequently the conviction must
be quashed.
LuTWYCHE, LiLLEY and Sheppabd JJ. concurred.
Conviction quashed.
Solicitor for prisoner : — Norris.
R. V. Jimmy.
Cookie C.J.
[In Banco.]
R. V. KING.
[4 S.C.R. 144; 1 Q.Ii.R. Pt. I., p. 73.— Note.— S. 207 of 38 Vic, No. 5, is repealed,
see now s. 519 of Criminal Code to like effect.]
Insolvency Act of 1874 (38 Vic, No. 5), ss. 43, 70, 115, 207, r. 38—
Debtor'' s petition — Verification of by affidavit — Examination of
debtor — Answers to questions — Admissibility of answers on
subsequent trial of debtor on criminal charge.
A debtor's petition for adjudication under s. 43 of the Act 38 Vic, No. 5, need
not be verified by affidavit.
The provision in s. 115 of The Insolvency Act of 1874 " that no question put to
any insolvent on any examination under this Act shall be deemed unlawful by
reason only that the answer thereof may expose him to punishment in respect of
some one or more acts or things made punishable as misdemeanors," does not
operate to render inadmissible on a subsequent trial of the insolvent for a crime,
statements made by him on an examination under s. 114 of the Act.
1876.
11th and 14th
Febritary.
Cockle O.J.
Lutwyche J,
Lilley J.
Sheppard J,
96 QUEENSLAND JUSTICE OF THE PEACE.
E. V. Kino. Senible, however, that an insolvent may refuse on such an examination to answer
any question which may expose him to punishmeiit on a criminal charge.
Ceown Case Rbseeved by Lutwyche J. on the trial of
John Campbell King for fraudulent insolvency.
The prisoner was tried before Lutwyche J. on a charge of
fraudulent insolvency in trying to leave the colony, taking with
him certain property which should have been divided among his
creditors. The adjudication of the insolvent was proved by the
production of the Gazette containing the adjudication, but counsel
for the prisoner objected to proof in that form, and also to the
adjudication itself, as having been made upon the petition of the
insolvent, which petition was not verified or supported by affidavit
as required by r. 38 of the Insolvency Rules. Evidence was
tendered of admissions made by the prisoner on his examination
under s. 114 of the Act, and objection was taken by counsel for the
prisoner to this evidence, he relying upon s. 115 of the Act,
Lutwyche J. admitted the evidence, but stated a case, reserving
for consideration of the Court in Banco the questions of the
admissibility of such evidence and of the proof of and validity of
the adjudication of the prisoner as an insolvent.
Blake Q.C. and Real, for the prisoner, withdrew the objection
that the orders published in the Government Gazette were not
conclusive evidence of adjudication on the authority of R. v.
Levi (L. & C. 597), and admitted that the question related to
property.
Griffith A.G. and Beor, for the Crown, cited Ex parte Cossens
(Buck. 531), Ex parte Kirhy (Mon. & McAr. 212), R. v. Shggdt
(Dears. 656), R. v. Coote (L.R. 4 P.C. 599), R. v. Cross (Dears.
& B. 68).
Blahe Q.C, in reply. Section 115 limits s. 114.
C.A.V.
February 14, 1876.
Cockle C.J. Cockle C.J. : In this case, the prisoner was indicted for a felony
under s. 207 of the Act, and an adjudication was offered in evidence
and objected to on the grounds that the petition was not supported
by affidavit. The petition was a debtor's petition, which, under
s. 43 of the Act, may serve as the basis of an adjudication upon
due proof, which does not, as I understand the Act, mean neces-
sarily proof by affidavit. The Court may be satisfied by other
matter — by attestation, for instance. It has been said that under
r. 38, it is necessary that there should be an affidavit ; but that
CRIMINAL REPORTS, 1860-1907. 97
rule does not, it seems to me, apply where there has been a pro- ^' - '•^™°-
vision made in the Act itself for proceedings on petition, or even Cockle C J
if it did apply, it would possibly be competent for the Judge
exercising the discretion given him by the rule to be satisfied
without such proof ; and moreover s. 70 of The Insolvency Act,
by providing that the Gazette shall be conclusive evidence of the
adjudication, seems to show the inchnation of the Legislature
to destroy any such objection as that made to the admissibility
of the adjudication. I think, therefore, there is nothing whatever
in this point, and I now proceed to the objection raised under s.
115 of the Act. Now, as far as I am concerned, I have the
greatest difficulty in assigning any meaning to this section, or
to conjecture what could have been its purpose. Interpreted
it cannot be by the marginal note ; but even between section
and note there seems to be a conflict. For the margination
treats the Legislature as referring to answers and to the nature of
answers, whether criminating or not, while at the first glance the
section seems to refer to questions, and provides that certain ques-
tions shall not be unlawful, and by implication that certain other
questions are to be. " No question put to any insolvent upon any
examination under this Act shall be deemed to be unlawful," are
words which at first sight would seem to imply that the Legislature
had misconceived the Common Law, and supposed that any such
question, unless it be put to an insolvent actually upon his trial,
and put judicially by the Judge from the Bench, would be unlawful.
As I understand it, the Common Law is not that such a question
cannot be put, but simply that the person may refuse to answer.
Assuming for a moment — which I do not assume, and, in fact, I
think the assumption ought not to be hastily indulged in — that .
this clause is based upon misconception of the Common Law, I
think it would be extremely dangerous for us to travel into the
regions of conjecture, as we should were we to pronounce on the
effect of that misconception. It has been contended here that
the omission of the words " or felonies " at the end of the section
shows an intention on the part of the Legislature that questions
which in respect to misdemeanours would not be unlawful would
be in respect to felonies. It is a possible interpretation to
put on the Act, but it is not perfectly clear to me why a contrast
is to be drawn between misdemeanours and felonies at Common
Law and those under other Acts. It is more probable that the
words should have been omitted, but it is equally probable
that it was intended to draw a distinction. It would be very
98
QUEENSLAND JUSTICE OP THE PEACE.
U. V. King. unsafe indeed to base a judgment upon conjecture. I prefer,
GoekleC.J. therefore, one or two other interpretations, namely— in using
this phrase, the Legislature merely meant that the question need
not be answered, not to deprive the Judges or parties of the
opportunities of discovery offered by putting the question, but
simply that an unlawful question need not be answered. That,
certainly, would seem to be the view taken by the Legislature in
the 22nd section of 7 Vic, No. 19, which Mr. Justice Sheppard
has kindly furnished us with, and which, after reciting that
" if any insolvent shall refuse to answer any lawful question,"
goes on to enact that " After the passing of this Act no question
shall be deemed unlawful by reason only that the answer might
criminate him." Thus fortified with the expression of the New
South Wales Legislature, of which this colony then formed a
part, I see less difficulty in coming to the conclusion that ho
question shall be deemed unlawful by reason only that the answer
may expose him to punishment, has reference to the old state
of the law, and by " unlawful," the Legislature meant questions
to which an answer might be refused. If that be the interpreta-
tion, of course this conviction must be affirmed, because it is
expressly stated on the face of the case that the prisoner did not
object to answer the questions put to him. I may add that it has .
occurred to me that another interpretation may be put on these
words, that they may have crept into the clause this way — that the
Legislature had intended to enact that certain questions should be
unlawful, they might have intended that a question intending to
convict of these felonies should not be lawful. If that be so, cer-
tainly there is no express enactment in the Act that any particular
question shall be unlawful, and if the Legislature have carried
out that part of their intention, it is only by impHcation so
remote that it would not be safe to base any arguments upon it.
The conviction wiU have to be affirmed.
Lutwyche J. LxJTWYCHE J. : I also think the conviction ought to be affirmed.
It appears to me that there is no weight in one point which was
argued at the bar on Friday last. I think the orders of adjudica-
tion in both cases, in respect of King and Redmond, and in respect
of Redmond, were both good, although the petitions were not
verified by affidavit. Rule 38 appears to me to apply to motions
only, and the absence of the word " affidavit," when the words
" due proof " are used in the 43rd section, leads me to tha
conclusion that it was not intended to require an affidavit in the
case of a debtor's petition, while in the 52nd section we have
CRIMINAL REPORTS, 1860-1907. 99
an express provision that the creditor's petition — then being ^- *^™*
Tinder the notice of the Legislature — that the petition of the Lntwyche J.
creditor shall be verified by the oath of the petitioner.
Then with regard to the second and more important point raised
by the language of the 115th section of the Act, I agree with the
■Chief Justice in thinking that the words " unlawful question "
mean a question that need not be answered ; and that being so,
if the question is put, and the insolvent decline to answer it,
and is nevertheless compelled to answer, I take it that in a
prosecution for felony founded upon evidence thus extorted from
him, he might possibly successfully object, if the question did not
relate to his deaUngs and property. I think it would be extremely
dangerous to hold that the law which was formerly in force, and
which is still in force, with regard to the answers given by the
insolvent, tending to criminate himself, when his dealings or
property are in question, should be so altered by implication
as to make it unlawful to put a question which might expose the
insolvent to a charge of felony. Mr. Justice CressweU, in a case
that came before him in the Common Pleas (Wansey v. Perkins,
7 Man. & Gr. 142), said — " It was a safe rule, in construing Acts
of Parliament, to look at the words of the Act, and construe
them in the ordinary meaning, unless such a construction would
lead to some manifest absurdity or injustice." Now, when
words are plain, and their construction is easy, by applying
the ordinary sense of the words to them, that should be done ; yet
if the result should be a manifest absurdity or injustice, courts are
then in a manner compelled to give them a different construction.
Surely, if by impUcation we are asked to do something which
would lead to both, we ought to be very cautious how to adopt
such a construction. And it seems to me that it would be mani-
festly absurd and unjust if we were to hold that a person might
be compelled to give an answer that would expose him to a
prosecution for a misdemeanour under this Act, while he was
protected from giving an answer which would subject him to a
prosecution for a graver offence. It would be holding out a
sort of premium to criminals to sin as much as they could, and
such a construction would certainly be unjust to the men who
are found to have committed acts which in the eyes of the law
are of lesser magnitude. After all, the distinction is, perhaps,
more technical than substantial, for the two felonies which are
mentioned in this Act seem to me to be substantially no more
contrary to morality and the aims of pubhc justice than many
100 QUEENSLAND JUSTICE OF THE PEACE.
R. V. King. other acts which are enumerated as acts of misdemeanour only,
Lutwjche J. On the whole, I think, wthout striving to point out the particular
object which the Legislature had in view, which it is not very
easy to discern, I think we shall, as far as we can judge, carry
out the intention of the Legislature by confining the operation
of the section to the words which appear in it.
LilleyJ. LiLLBY J. : Upon the first point raised, that the adjudication
was in effect bad, because the petition had not been supported
or proved by affidavit, I have come to the same conclusion as
the Chief Justice and Mr. Justice Lutwyche. The language of
the section is, that the adjudication shall be upon due proof,
and the Judge, who is the Court sitting to make the adjudication,
is to exercise a judicial function, and it is for him to decide whether
the evidence amounts to due proof, or to that sufficient degree of
proof, which would enable him to make the adjudication. Now,
I suppose that there can be no stronger proof than a man's own
admission that he is unable to meet his engagements and hable
to The Insolvency Act.
But then it is said that the judgment of the Judge is to be
measured by r. 38, that the rule prescribes that the proof shall be
an affidavit. But when we look to the language of that rule, it is
very doubtful, in the face of s. 33, which requires an adjudication
against a debtor to be made upon petition, whether the rule
applies at all. But then, if we admit that the rule does apply,
is it not in itself a sufficient answer to the objection ? Because
there, " All applications to the Court in the exercise of its primary
jurisdiction by virtue of the Act, shall (unless herein or in the Act
otherwise provided, or the Court shall in any particular case
otherwise permit) be by way of motion supported by affidavit."
Well, now, if the judge is satisfied and makes the adjudication
upon a petition without affidavit, it is the strongest proof that he
has permitted proof of another kind to be used — at all events,
due or sufficient proof. Upon that point, therefore, I think the
prisoner can have no advantage from the objection.
Then I come to the graver objection founded on the 115th
section which states that " No question put to any insolvent on
any examination under this Act shall be deemed unlawful by
reason only that the answer thereto may expose him to punishment
in respect of some one or more acts or things by this Act made
punishable as misdemeanors." I do not understand the members
of the Court who have delivered judgment before me to decide
that this is an impHed enactment, that any question put to an
CRIMINAL REPORTS, 1860-1907. /o \^\ \ \ 101
insolvent in his examination before an examining C^urV wliic& Bi^j^^m.
would tend to prove that he had been guilty of f elony%(ouJ(J ^e^'s^^yfiilley J.
unlawful, or that the insolvent could refuse to answer it.
not understand the members of the Court to have gone so far,
and I think, that whether the question tended to show that the
insolvent had been guilty of felony or misdemeanour, he is bound
under this statute to answer, and the evidence can be used against
him either for felony or misdemeanour. In considering this
115th section, we must have regard to the state of the law before
the enactment, or, rather, to the effects of the other portions of'
the statute. We must take it to be clear law since the Queen v.
Scott (1 Dears. & B. 47, 25 L.J. (M.C.) 128), which has been sanc-
tioned by our highest Court of Appeal — the Privy Council — that
where a statute requires an insolvent to answer questions touching
his trade deahngs and property, he must answer, even though the
answer expose him to a prosecution for felony. There were two
rules existing at the time this enactment was passed. The first
was the maxim " that no man should be held to accuse himself,"
and " that he should not be bound to answer any question to
criminate himself." When the statute required him to answer
touching his trade and dealings, it removed that privilege. Then
the effect of the case of the Queen v. Scott {swpra) was, not to go
further, to hold that the rule of the law of evidence was also
repealed — namely, that when a man has given his answer it may
be used in evidence against him. On the contrary, the effect of
the case is this : — If the answer is given by the force of the
statute, by the legal obligation of the man, it shall be received in
evidence against him, unless the statute has itself some express
enactment to the contrary. Therefore, when the statute com-
pelled him to answer, it compelled him to answer at his peril.
If the Legislature had intended that he should have any protec-
tion, it would have enacted it. But Mr. Blake argued with great
force that the 115th section, when it enacted that " No question
put to any insolvent on any examination under this Act shall be
deemed unlawful by reason only that the answer thereto may
expose him to punishment in respect of some one or more acts or
things by this Act made punishable as misdemeanors," impliedly
enacted that it should be unlawful to ask him any question which
would expose him to a prosecution for felony. I am unable
myself, I confess, to give such effect to the plain language of the
115th section. I cannot suppose it was based upon misconception
of the Common Law. I rather prefer to hmit it to the extent I
102 QUEENSL-AND JUSTICE OP THE PEACE,
E. V. King. shall indicate, to taking the interpretation of the learned Chief
Lilley J. Justice, that a man may refuse to answer ; — that may possibly
explain it. In all probabiUty, that was present to the minds of
the Legislature. Whatever conception you attempt to fix of this
section, it is by no means satisfactory. It has, no doubt, produced
considerable doubt in the interpretation of the statute, but it may
be that in creating a long series of new misdemeanors (I think
there are twenty-four), entirely the creatures of this statute, that
the Legislature thought it would be better to make this enact-
ment ; that although a man might be exposed to a prosecution
for misdemeanour under the statute, he shall not refuse to answer.
That may have been present to the minds of the Legislature. It
is difficult at any time to say what is the actual intention of the
Legislature, and all we are bound to do is to gather the construc-
tion from the instruments submitted to our judgment. Well,
then, we know that the law leans strongly against imphed repeals.
If there is another rational interpretation to avoid that, it must be
put upon it. If that be so, the principle holds more strongly
against implied enactments, because in the absence of that
express enactment the question itself is not unlawful by the
common law ; if we take the literal reason of the section, it would
make any question with that view, or having that tendency,
unlawful. It would be an extension of the common law by implied
enactment, because at Common Law the question was not
unlawful, nor the answer. But the protection he had was this,
that if it tended to criminate him, he was not bound to answer it.
But that protection seems to have been removed. Therefore I
think the conviction must be affirmed.
Sheppard J. Sheppaed J. : With regard to the first point, I am of opinion
that on a debtor's petition to be adjudicated an insolvent, it is not
necessary that the petition should be supported by affidavit.
Under s. 43, it is on the " presentation of the petition and on
due proof of presentation," the debtor can be made an insolvent
on a petition containing an allegation of his inabihty to meet his
creditors, and that is one of the acts of insolvency set under out
s. 44. Where the proceedings are adverse, where it is a creditor's
suit, it is necessary that there should be an affidavit verifying
the petition ; and where in the latter section liquidation by
arrangement, which is a non-contentious suit, and the debtor
has to file a petition, he also has under the rules to make an
affidavit, and on reference to form No. 89, he does not swear
to the fact of his being unable to pay his debts, but simply makes
CRIMINA.L EEPORTS, 1860—1907. 103
an affidavit as to the most convenient place for his creditors to ^- "• ^™<*-
meet. Therefore, the principle of the Act is, that in contentious sheppard J.
suits, the appUcation for adjudication must be supported by
affidavit, and in non-contentious cases it need not. I do not
apprehend that r. 38 applies, that speaks of motions, and
although the learned counsel informed the Court of a similarity
between petitions and summonses in the Court of Chancery, I
apprehend it has no appHcation, because under the rules petitions
are excluded, and even if it did apply, there is authority for
holding that the Act of the Legislature must prevail over the
rules. Lord Chief Justice James says : — " The Act of Parlia-
ment is framed, and the rule must be interpreted by it, and that
rules must give way to the plain terms of the Act." Here the
plain terms of the Act are, that on an application for adjudication,
the petition is to be filed, and on proof of that, which would be
furnished by the endorsement of the Registrar on the petition,
adjudication is made. Therefore, I think that point must fail.
With regard to the other question, no doubt it is a matter of
very great difficulty, and I would refer to the previous Acts of
Council and of the Legislature, which deal with the examination
of insolvents, and what questions they were bound to answer,
and what they were permitted to refuse to answer. Under the
old Insolvency Act of the Colony of New South Wales (5 Vic,
No. 17), the insolvent was compelled to answer all questions that
tended to the discovery of his property or estate, and there was
no privilege allowed him. That does not appear to have been
a satisfactory state of law, and it was altered by the 7 Vic, No. 19.
By s. 22, it is enacted " That if any insolvent under examination
before the Court or Commissioner shall refuse to answer any
lawful question put to him, he may be committed to prison
until he shall submit to make such answer. Be it enacted that
after the passing of this Act no question put to an insolvent
on any such occasion shall be deemed unlawful by reason only
that the answer thereto may expose him to punishment under
this Act. Provided that no such examination or any answer
thereto shall be admissible in evidence against such insolvent
(other than on a prosecution against him for perjury) except
for the purposes of this Act only." Then 19 Vic, No. 33, says,
" Provided however that no examination or answer of the person
charged with any indictable ojEfence under the provisions of the
Insolvent Acts in force for the time being shall be admissible .
in evidence against him on the trial of any indictment other than
lOi QUEENSLAND JUSTICE OF THE PEACE.
R. V. King. a prosecution against him for perjury." So that before The
SheppaxdJ. Insolvency Act of 1864, the law was, that an insolvent should
give full discovery, but that his answer could not be used against
him on the trial of any other indictment other than perjury. The
Act of 1864 was drawn from the English Act passed in the 12th
and 13th Vic, and that also enacted that fuU discovery should
be made, and it was held to take away from the insolvent the
right to object to any question, although the answer might tend
to convict him. That was the law down to Begina v. Scott (sv/pra).
But it seems to me that it must be remembered that that was a
decision the correctness of which was very much canvassed.
It is disapproved by Mr. Greaves in his " Russell on Crimes,"
and was dissented from by one of the Judges forming the Court,
and it was strongly disapproved by Sir Fitzroy Kelly in a late
case, and also to a certain extent by Sir A. Cockburn. So that
although the law had been settled in that way, there had been all
these discussions on the matter. Then the Act of 1874 begins,
and it is necessary to ascertain what the Legislature intended
by the words used in the Act, and it must be remembered that
they were deahng with the necessity of having a fuU discovery
of the insolvent's property and estate, and also that there was
a maxim of the Common Law that a man should not be compelled
to accuse himself. That being the state of the case, ss. 114,
115, and 116 of the Act are passed. Section 114 is for the purpose
of bringing the insolvent before the Court and for the discovery
of documents. Then, before enacting to what extent the insolvent
is to be examined, s. 115 is put in : — " No question put to any
insolvent on any examination under this Act shall be deemed
unlawful by reason only that the answer thereto may expose
him to punishment in respect of some one or more acts or things
by this Act made punishable as misdemeanors." Section 116
gives the right to the Court to examine the insolvent. It seems
to me impossible to hold that the Legislature, under s. 115, did
not intend to draw a distinction between misdemeanors and
felonies, and that when they say that no question put to the
insolvent shall be deemed unlawful by reason only that the answer
thereto may expose him to punishment in respect of some one cfr
more acts or things by this Act made punishable as misdemeanors,
it seems to me that they must have intended to take into con-
sideration the doubt there was in the law before, that in the case
, of felony he should not be compelled to accuse himself. But I
do not think that it means that the question itself is to be unlawful,
CEIMINAL REPORTS, 1860—1907.
103
that is to say, that the Judge is to interfere and say that a question
which may relate to the discovery of the deahngs of the insolvent,
and may also lead to a prosecution for felony, that he is to say,
" I cannot allow that question to be put." An unlawful question,
in the ordinary sense of the term, is one that the Judge says cannot
be put in law. So that in my opinion the result is, that when a
question is put to an insolvent which in some way may expose
him to the punishment for felony, and which may be given in
evidence against him on a charge of felony under the Act, that he
has the right to demur to the question and refuse to answer it.
In this case the objection was not made, and inasmuch as the
objection was not made, the case of Regina v. Sloggett (1 Dears.
656) is an authority, and, therefore, the question having been
answered without objection, it appears to me that it was properly
received, and, consequently, the conviction must be affirmed.
Conviction affirmed.
Solicitor for prisoner : A. J. Thynne.
Solicitor for prosecution : TAe Crown Solicitor (Robert Little).
R. V. KiNd.
Sheppard J.
[In Banco.]
R. V. DODWELL.
L4 S.C.R. 171 ; 1 Q.L.R. Pt. I., p. 84.— Note.— See also s. 641 of Criminal Code.
Case referred to in R. v. Highfield (5 S.C.R. at 188, post).]
Public servant — Misappropriation of money — Evidence — The Audit
Act of 1874 (38 Vic, No. 12), s. 49.*
A public servant may be conYicted for misapplying moneys which have come
into his possession for or on account of the Consolidated Revenue, notwithstanding
that it was not his duty to receive such moneys, and it is not necessary to a
conviction that the Government should have had any further claim or title to
such moneys beyond the right to deal in account with them.
Per Sheppard J. ; The Crown must prove that the Government had a special
or general property in the moneys upon receipt thereof by the prisoner.
Cbown Case Rbseevbd by Mr. Deputy Judge Hely.
G. W. DodweU was tried before me at the last sittings of the
Western District Court, holden at Warwick on the 26th of October,
A.D. 1875, under the 49th section of The Audit Act, for that he, being
a7th,
1876.
38th April.
Cockle G.J.
Lutwyche J.
Lilley J.
Sheppard J.
* Repealed— -S<e Criminal Code, ss. 398 (V.), 641.
106 QUEENSLAND JUSTICE OF THE PEACE.
R. V. DoDWELL. in the Public Service, did misapply certain moneys whick had
come into his possession on account of the ConsoUdated Revenue.
The evidence adduced before me as Deputy Judge in the trial,
so far as relates to the question I have to submit to the Court of
Criminal Appeal, was as follows : —
In June, 1875, prisoner held the situation of Clerk of Petty
Sessions at Warwick, and on the 29th of that month, E. B. Douyere,.
a pubhcan residing in that town, saw the prisoner, asked him to
forward her publican's Ucense fee to the Treasury, and for that
purpose handed to him the sum of £30 in bank notes, which
prisoner received from her, and for which he gave her a receipt,
which was produced and put in evidence at the trial. Prisoner
was to get a bank draft for the above amount, and send it down
to the Treasury for her, she at the same time handing him the
price of the draft.
Douyere never got that money nor any part thereof back from
the prisoner.
r. 0. Darvall was then called, and proved that he was Revenue
Clerk in the Treasury ; that it was his duty to receive all Govern-
ment moneys on account of the Consohdated Revenue ; and
that the prisoner had been in the habit of sending money down
to the Treasury for pubUcans' licenses ; that he (prisoner) was
not bound to receive general hcense fees, but if he did receive
them he should forward them to the Treasury immediately ; that
he (witness) had never received any credit for the hcense fee of
Mrs. E. B. Douyere ; that no person was appointed to receive
Hcense fees — they are bound to be paid into the Treasury ; that
Mrs. Douyere's had not been paid into the Treasury ; that it
could not have been paid in without his knowledge, and that it
still remained unpaid.
Edward Boyd CuUen, Chief Clerk in the Treasury, proved that
it was his duty to open all letters addressed to the Under Secretary
of the Treasury, and should there be any remittances therein,
to hand them to the Revenue Clerk ; that he (witness) knew
prisoner, and that he never received a remittance from him on
account of Mrs. E. B. Douyere.
At the conclusion of the case for the prosecution, prisoner's
counsel objected that there was no case to go to the jury, as there
was no evidence to show that the money received by prisoner was
received on account of the Consolidated Revenue of the colony.
I overruled the objection, and left the case to the jury, who
found the prisoner guilty. I passed judgment on him, and he
is now in gaol.
CRIMINAL REPOETS, 1860—1907.
107
Upon the application of counsel for the prisoner, I consented to ^- '"■ Dodweli,.
reserve for the opinion of the Court the questions : " Whether,
upon the facts stated, I was right in leaving the case to the Jury,
and whether the prisoner was properly convicted ? "
Real, for prisoner. The money was received not in the capacity
of a servant of the Government, but as agent for the prosecutrix
for the purpose of obtaining her license from the Treasury, he
not being an officer appointed for receiving license fees on account
of the Consolidated Revenue. R. v. Beaumont (Dears. 270),
R. V. Thorp (Dears. & B. 562, 27 L.J. (M.C.) 764).
Griffith A.G., for the Crown.
Cockle C.J. : In this case, the question reserved for our Coekle C.J.
decision is, " Whether, upon the facts stated, there was a case
for the jury ? " Now, the prisoner was charged for that he being
in the public service, did misapply certain moneys which had '
come into his possession on account of the Consolidated Revenue.
Now, money did come into his possession — on what account ?
It was his duty to receive all Government moneys on account
of the Consolidated Revenue. He had been in the habit of
sending money down to the Treasury for publicans' licenses,
although not actually bound to receive general license fees.
Then, according to his own statement in the receipt, the money
was " received on account of the Public Service of Queensland
for a pubHcan's License." Accompanying that with the fact that
it was his duty to receive money on account of the Consolidated
Revenue, I apprehend that the inference is that this money came
into his possession on account of the Consolidated Revenue.
It is possible — though that probably would depend upon whether
or not a certificate from the Bench had been lodged at the Treasury,
or whether or not other proceedings had taken place at the
Treasury — it may be presumed that under certain circumstances
Mrs. Douyere could have countermanded the purpose for which
the money was lodged. There is no evidence whatever that she
did so ; and as against all the world, except Mrs. Douyere, and
possibly even as against her, the authorities at the Treasury
had the right to the possession of this money. That being so,
I think all the facts necessary to sustain the information under
the 49th section of The Audit Act seem to have existed, and,
all events to have been found by the jury ; and, consequently,
that the conviction must be affirmed.
Lftwyche J. : The sole point reserved for the consideration Lutwyohe J.
108
QUEENSLAND JUSTICE OP THE PEACE.
U. V. DODWELL.
Lutwyohe J.
Lilley J.
of the Court in this case is : — " Whether, upon the facts stated,
I was right in leaving the case to the jury, and whether the
prisoner was properly convicted ? Well, I think upon the facts
stated that the learned Judge was quite right in leaving the case
to the jury, and that the prisoner was properly convicted. The
propriety of the conviction rests upon circumstances which have
just been stated by the Chief Justice, and upon the fact which
seems to me to have been perfectly established, that the money
was received on account of the Consolidated Revenue. The Act,
which appears to have been very carefully framed, and especially
this section of it, seems to have been intended to prevent persons
in the Public Service, who received pubUc money, from appro-
priating it to their own use, whether it is their duty to receive
the money or not. It may be part of their duty to receive money
for the particular purpose for which it is lodged in their hands,
but on the other hand it may not ; but the section apphes to all
persons in the Public Service who obtain possession or control
of moneys on account of the Consolidated Revenue. Then, if
any person in the Public Service receives money to be applied to
the Public Service, and therefore forms necessarily a part of the
Consolidated Revenue when it reaches the Treasury, he, under
the terms of this section, appears to be subject to the penalty
contained in it. Now, it is quite clear that Dodwell was in
the PubHc Service ; he was clerk of petty sessions at Warwick ;
the money came into his possession from Mrs. Douyere, and it was
her money, in my opinion, until it reached the Treasury. It
is not necessary, however, to state whose property the money
was ; it is sufficient that it shall be shown that it is money, and
that it came into the possession of a public servant for and on
account of the Consolidated Revenue. That appears to me to
have been perfectly established, and, therefore, I think that this
conviction was perfectly right, and ought to be affirmed.
Lilley J. : I have but very few words to add to the judgments
already delivered. It seems to me that the plain meaning of the
section is, that if anyone being in the Public Service receives
money with which the Government would have a right to deal in
account in any way, although it might not ultimately be entitled
to keep the money, if a person receives money under these
circumstances and misapplies it, he is guilty of the offence. I
think the main question is — " Was he in the Public Service, and
did he receive the money on account of the • Consolidated
Revenue ? " or, in other words, " Did he receive money with
CRIMINAL REPORTS, 1860—1907.
109
which the Government had a right to deal or to have the immediate
possession ? " — and that appears to me to be the whole meaning
of the Act. In this case, the facts are clear enough — he received
the money on account of the Public Service, and that fact being
left to the jury, they have found that it was received on account
of the Consolidated Revenue. It seems clear that Mrs. Douyere
paid her money in order to obtain some Ucense which had been
already granted under The Publicans Act. The Government,
therefore, had a clear right to deal with the money, and whether
they might deal with it in the way of retaining it and granting
the license, or in refusing to issue the license and returning the
money to her, was a matter with which the prisoner had nothing
to do. I think, therefore, that the conviction must be affirmed.
Sheppabd J. : The prisoner in this case is indicted under the
49th section of The Audit Act for misapplying certain moneys
which had come into his possession on account of the Consolidated
Revenue, he being a person employed in the Public Service. It
appears to me that it is necessary to establish that the money
which is received by a pubUc officer is m.oney which by the receipt
becomes either the special or the general property of the Govern-
ment. That is analogous to embezzlement, and it is clear, that
although, since the alteration of the law it is not necessary to
show that the money is received by the servant in virtue of his
employment, still it is necessary to establish that the money
received is the property of the master ; that is to say, that he has
either a special or a general property in that money. There is a
late authority for that in the Queen v. Gullen (L.R. 2 C.C.R. 28).
Here it appears to me the question is — Whether, when the prisoner
being in the Public Service received this money, the Government —
the Crown — had a special or general property in it ; that is to
say, supposing some other officer of the Government had come
to the Clerk of Petty Sessions directly this money was received,
and said, " Now hand this money over to me." If he had the
right to do that, it appears to me that the Crown had a special
property in the money. It might turn out afterwards that if the
license fee had been paid by the agent of Mrs. Douyere in Brisbane,
the money would have to be returned, but if they had a special
property in the money, then the prisoner was, it seems to me,
properly convicted. Now there were two states of circum-
stances laid before the jury — one, the case argued by the learned
counsel for the prisoner, where it appeared that the money was
paid to the prisoner for the purpose, and for the purpose only, of
R. V. DOBWELL.
LiUey J.
Sheppard J.
110
QUEENSLAND JUSTICE OF THE PEACE.
E. V. DoDWELL. getting a draft, and sending that draft down to the Treasury.
Sheppard J. It appears now, from the receipt, that he acknowledges not to
have received it on behalf of Mrs. Douyere, but on behaK of the
Public Service. The obtaining the draft was merely the course
of transmitting the money to the Treasury. It therefore seems
that directly he received it on behalf of the PubUc Service, as
stated in the receipt, that the officers of the Revenue had a right
to its immediate possession, and having that right they had that
special property which it appears to me they must have, for it to
form a portion and to be received on account of the Consolidated
Revenue. These facts, whether he received it on behalf of Mrs.
Douyere, on whether he received it on behalf of the Consolidated
Revenue, were left to the jury, and they have found that the
received it on behalf of the revenue. I am therefore of opinion
that the conviction must be affirmed.
Conviction affirmed.
Solicitors for the prisoner : Thompson & Hellicar.
Solicitor for the Crown : The Crown Solicitor (Robert Little).
1877.
13th November.
Cockle C.J.
Lutioyche J.
Lilley J.
[In Banco.]
In re HAUGHTON.
[5 S.C.B. 53 ; 1 Q.L.R. Pt. 11., p. 53 Note.— See also Emmerson v. Clarke, 3
S.C.R. 76, ante p. 71 ; Millis v. Kiefer, 10 Q.L.J. 142, post ; Clifford v. White,
4 Q.J.P.R. 132 ; 1910 S.R.Q. 364.]
Illegally losing cattle — Prohibition — 17 Vic, No. 3, s. 6.*
In order to support a conviction under s. 6 of 17 Vic, No. 3, for illegally using
an animal, it must be shown that the animal was used for the profit, convenience,
or pleasure of the party using it.
Motion to make absolute a rule nisi calhng upon Thomas John
Sadlier, P.M., Tambo, and Maurice Solomon to show cause why a
prohibition should not issue restraining them from further pro-
ceeding in respect of a conviction against George Haughton for
illegally taking and using a horse, upon the grounds : (1) That the
magistrate acted ultra vires in admitting evidence given in another
case ; and (2) that there was no evidence to support the con-
viction, or, in other words, that there was no evidence of using
on the part of Haughton.
* See Criminal Code, s. 445.
CRIMINAL REPORTS, 1860—1907. Ill
Haughton and a man named Lacy were originally charged ■^" '■" Haoghton.
before the Police Magistrate with stealing the horse in question.
After several witnesses had been examined this charge was with-
drawn, and one for illegally using substituted. The depositions
previously taken were read over and accepted as evidence against
the defendants, no objection being taken by him. The evidence
was again sworn to, and an opportunity of cross-examination
allowed.
Haughton was sentenced to six months' imprisonment with
hard labour.
The facts appear in the judgment.
Garrick, for Haughton, moved the rule absolute.
Griffith A.G., for the Crown, in support of the conviction.
LuTWYCHE J. deUvered the judgment of the Court. Lutwyohe J.
In this case, as we are all agreed upon the second ground on
which the rule was obtained, it will not be necessary for me to
say anything about the first. With regard to the second ground
of the objection to the conviction, which is that there was no
evidence to support the conviction, I think that, after the very
careful investigation that the Court has made of the evidence,
that the learned counsel, Mr. Garrick, who appeared on behalf
of the prisoner Haughton, is right. To support a conviction
for illegally using an animal under s. 6 of 17 Vic, No. 3, it must
appear the animal was used for the profit, convenience, or pleasure
of the party using it — that was the definition which I gave in
my construction of the meaning of the statute in the case of
Emmerson v. Clarke (3 S.C.R. 76). Now, in this case I am unable
to see that there is any evidence to show that Haughton used
the mare in question for his own profit, pleasure, or convenience.
So far as I have been able to form a judgment on the facts of the
case, the animal was at one time in the course of the present year
the property of Haughton. It was sold by him to Lacy, it
appears, in this way, that he gave Lacy the right to sell any
horses belonging to him. Then it appears^ that, in April of the
present year. Lacy sold a number of horses, which had been
running the mail on the Charleville line, to Solomon and Bredhauer.
This mare in question was, as late as July of the present year,
running at large, and a day or two afterwards was, by the order
of Haughton, driven by Wilhams to his place at Nive. A week
"after that he, accompanied by Lacy, came to the paddock and
assisted him in catching the mare, which was then mounted by
112
QUEENSLAND JUSTICE OP THE PEACE.
In re Hatjghton. Williams. But there is no evidence in the case from which it can
Lutwyohe J. possibly be inferred that Haughton was aware of the sale by
Lacy to Solomon and his partner of the animal in question.
Then, if Haughton did not know of the sale to Solomon, but
was aware that he had given Lacy authority to sell any horse
belonging to him, he might, and no doubt did, reasonably infer
that Lacy was desirous of selling this mare which was included
in the terms of the contract between himself and Lacy, and it
seems to me to be a very natural course of conduct for him to
tell Lacy where the mare was, to point her out, to assist in catch-
ing her, and let her be used by the owner. Therefore he cannot
be said to have illegally used the mare, not having done so for
his own profit, convenience, or pleasure. Therefore I think the
conviction must be quashed.
Bide absolute.
Solicitor for the Crown : The Crown Solicitor.
SoUcitors for George Haughton : Daly <fe Abbott.
1880.
19th March.
Lilley C.J.
Lutwyche J.
Hardivg J.
[Full Court.]
E. V. WELLS.
[5 S.C.R. 181 ; 7 Q.L.J. N.C. 105.— Note.— 29 Vic, No. 6, repealed.]
Criminal law — Crown case reserved— Error — Larceny Act of 1865
(29 Vic, No. 6), s. 44* — Bobbery under arms — Wounding.
To support a conviction under a. 64 of the Larceny Act of 1865 (29 Vic, No.
6), it is not necessary that the wounding and robbery should be committed on the
same person.
On a. Crown case reserved, counsel are not allowed to refer to matteis outside
the case as stated.
Ceown Case Reserved by Lilley C.J.
Joseph Wells was tried at Toowoomba for robbery under arms
and wounding. The information was laid under s. 44 of the
Larceny Act (29 Vic, No. 6), and in the first count alleged that,
on the 26th of January, 1880, the prisoner, at CunnamuUa, bemg
then armed with a loaded revolver, " in and upon one Joseph
Berry, feloniously did make an assault ; and him, the said Joseph
Berry, in bodily fear and danger of his fife feloniously did put,
and certain money . . . the property of the said Joseph
See Criminal Code, s. 411.
CRIMINAL REPORTS, 1860-t1907. 113
Berry, from the person, in the presence and against the will of ^^- "• Wells.
the said Joseph Berry, feloniously and violently did steal, take,
and carry away. And the said Joseph Wells, immediately after
he robbed the said Joseph Berry as aforesaid, did, by discharging
said pistol so loaded as aforesaid, one Wilham Murphy feloniously
and unlawfully wound." The words of the second count followed
those of the first, except that the money stolen was alleged to be
that of the corporation of the Queensland National Bank,
Limited, instead of that of Joseph Berry, as stated in the first
count. Upon this information the prisoner was found guilty
and sentenced to death. After sentence, and before it was
carried into efEect, application was made to the Chief Justice
to state a special case for the opinion of the Full Court, which
he did as follows : — The following matters alleged to be errors on
the record have been submitted to me, and I have been requested
to solicit the opinion of the Supreme Court thereon. The matters
are apparent on the information, and, of course, arose before me
at the trial. They are as follows : — (1) That the first count of
the information is bad, because it charges the prisoner Joseph
WeUs with having feloniously made an assault upon one Joseph
Berry, and with having put the said Joseph Berry in bodily fear
and danger of his life, and with having feloniously and violently
stolen certain property of the said Joseph Berry, and with
having, immediately after he so robbed the said Joseph Berry
as aforesaid, feloniously and unlawfully wounded one William
Murphy. (2) The second count is bad, because it charges the
prisoner (as in the first count), and with having . . . stolen
certain property of the corporation of the Queensland National
Bank, Limited, from the person, and in the presence, and against
the will of the said Joseph Berry, and with having immediately
after (as in the first count). (3) That the prisoner was im-
properly indicted under s. 44 of the Larceny Act of 1865. (4) That
the Queensland National Bank, Limited, is not a "person"
within the meaning of s. 44 of that Act. (5) That both counts of
the indictment are bad for duplicity in stating two offences in the
one count. (6) That the indictment and the matter contained
therein are not sufficient in law to warrant the judgment against the
said Joseph Wells, (7) That a general judgment having been
given on the whole indictment, one count at least of which was bad
in substance, the judgment ought to be reversed. The question
is. Are all or any of the matters errors in law ? I submit them,
therefore, to the Court in virtue of my powers of the statute."
114 QUEENSLAND JUSTICE OF THE PEACE.
E. V. Wells Garrick (with him Chvbb and Sutledge), for the prisoner, asked
how many counsel the Court would hear on behalf of the prisoner.
LiLLEY C.J. : In matters of error, only one is usually heard on
each side. The Court will hear the whole number if they wish.
Lille Y C.J. : There was a verdict on both counts, and a
general judgment was given. This must be treated as a matter
of error.
Garrick asked whether it was open to the prisoner's counsel to
refer to anything beyond the indictment.
Haeding J. : My feeling is that they should be allowed to argue
anything that was tenable. If it were shown there was error, it
could be rectified on the special case.
LuTWYCHE J. : The Court has never allowed counsel to travel
outside the special case as stated.
LiLLEY C.J. : The constitutional tribunal has disposed of all
matters of fact. The Court must deal with the information and
say whether the law allowed the Attorney-General to file it, and
whether it was sufficient.
Garrick : The objection to the first count is the robbing of one
person and the wounding of another. The prisoner's contention
is that they must be of the same person. (29 Vic, No. 6, ss. 44, 48 ;
24 and 25 Vic, c 96, s. 43). The intention was that where there
was robbery, death should be inflicted when the person robbed was
wounded. (R. v. Thomas, 1 Leach 330.) As to the second
count, the property is laid in the Bank. (R. v. Rudick, 8 C. & P.
237.) As to error, Gregory v. Regina, 15 Q.B. 957 ; Holloway
V. Regina, 17 Q.B. 317, were cited ; Dwarris, 635.
Chubb and Rutledge followed.
Pring A.G. and Griffith Q.C., for the Crown, cited, as to error,
O'Connell v. Reg., 1 Cox 531 ; Nash v. Reg., 33 L.J.M.C. 94.
Where the crime is capital, no difference how many counts, there
is no other punishment. The offence is compounded of two
other offences. (7 Wm. IV. and 1 Vic, c 87 ; 7 and 8 Geo. IV.,
c 29 ; 9 Geo. IV., c 55 ; 2 Russell, 115). The statute should
have used words showing that the Legislature meant the same
person. The section was passed to meet the mischief in R. v.
Thomas {supra).
Griffith Q.C. followed.
Lutwydhe J. LuTWYCHE J. : I think it best to confine myself to the pure
questions of law which arise on the record. The first and most
CRIMINAL REPORTS, 1860—1907.
115
important question is that which was expressed in the first count of
the indictment, and to say whether there was any error of law
stated in that, one must look at s. 44 of the Larceny Act of 1865
and see what its fair meaning is. In looking at a section of
an Act of Parliament with a view to give it its true construction,
one must, in the first place, look to the language of the section
itself, and if that is clear and plain, so that " he who runs may
read," there will be no occasion to travel further. But if there be
any ambiguity the Court may with propriety look to other
sections of the same statute, or to sections of any other statutes
which are in pari materia. It is an elementary rule, and one
consistently enforced by the Courts in giving their opinion on
the meaning of statutes, that where the grammatical meaning
is plain and clear that should be followed, unless some manifest
inconvenience, absurdity, or injustice would result. Looking at
the terms of s. 44, it seems to me that the words are exceedingly
plain and clear. I consider that the first ingredient in the offence,
Tvhich was provided for in that section, and which, I beheve,
was created by it, refers to the intent with which the robbery was
committed, and that the whole of it refers to an offence com-
pounded of robbery and wounding, the latter of which might
be either before or after the robbery. The contention of the
counsel who have addressed the Court on behalf of the prisoner
was the word " any," in the latter part of the section, must
mean " the same." They might, of course. They might be
confined to the same person who was robbed and wounded ;
but, as was admitted by one of the counsel, the word " any "
might embrace a different person from the one who was either
robbed or wounded ; and it appears to me that is really the
meaning we are to put upon that part of the statute. I see no
manifest inconvenience, absurdity, or injustice likely to follow
from our coming to such a conclusion. On the contrary, I think
there would be a manifest inconvenience, a manifest absurdity,
and a manifest injustice from holding the reverse opinion. A case
I put in course of the argument appears to me in a simple way to
point out the policy of the Legislature and to assist in explaining
the meaning of the words which are used in s. 44. Supposing an
aged and feeble man on a journey, and accompanied by another
whom he had taken with him for his assistance, were considered
by an evil-disposed person to be a desirable person to rob, and the
latter were, in order to effect his purpose, to wound the strong
man and immediately afterwards rob the other, it seems to me
E. V. Wells.
Lutwyohe J.
116
QUEENSLAND JUSTICE OF THE PEACE.
li. c. Wells.
Lutwyche J.
Harding J.
Lilley C.J.
that the Legislature has very prudently provided for occurrences
of that kind, and has provided for it in no other part of the statute.
If the word " any " did not embrace the person who was robbed,
as well as his companion who was wounded, very great evils
might result. The Legislature has chosen that the punishment
for these two offences together shall be much more severe than
they considered necessary where the robbery and wounding are
separate, and it seems to me that in passing the Act they proceeded
with care, circumspection, and astuteness, when they made this
section refer to more than one case. I am therefore of opinion
that the first count of the information was good, and that there
was no error in that count. The second count, as far as I can
see, only differs from the first in the fact that the property which
was alleged to have been stolen was laid in the corporation of th©
Queensland National Bank, Limited, instead of in Berry. To
make it a good count the property must have been laid in some
person, and it might well have been either in Berry, as in the
first count, or in the bank. I can see no error there. The other
points raised will be more or less decided by the construction the
Court puts on the first and second objections. It was objected
that a corporation was not a person, but it was not alleged in
the information to be such, so that there is nothing in that point.
Both counts, I think, are good ; and even if one of them were
bad, as the punishment annexed by the Legislature is the same,
I think the case of O'Gonnell v. The Queen, which was cited,
disposes of the matter. Upon the whole, therefore, I am of
opinion that the judgment ought to be affirmed.
Habding J. : I think that a Judge has power to state a special
case, even though the points raised had not been taken at the
trial. I concur with the views expressed by Lutwyche J.
Lilley C.J. : I assent entirely to the conclusion at which my
brother judges have arrived — that there was no error on this
record, and that the judgment ought to be affirmed. I con-
sidered the points raised, and directed the jury that it was not
necessary that the person wounded should be the same person
who was robbed. I also directed them that there must be an
immediate connection between the robbery and the wounding,
that, in fact, the wounding must be either at the beginning for
the purpose of getting hold of the plunder, or for the purpose
of securing his escape with the booty. I most carefully directed
them as to the immediateness, so that the prisoner has not suffered
CEIMINAL REPORTS, 1860—1907.
117
irom the absence of any averment on this point. I also express
the opinion that s. 44, upon its plain interpretation, is especially
apphcable to the circumstances of this colony. I think the
course I have taken in stating a special case is far preferable to a
writ of error, in which latter event the prisoner would have been
dragged to the Court to listen to the whole of the argument
and receive judgment.
Ltjtwyche J. : I am in favour of the course taken.
Conviction affirmed.
Solicitor for prisoner : Bunton.
B. V, WeI/LS.
Lilley C.J.
[PtTLL CotTET.]
R. V. HIGHFIELD.
[5 S.C.R. 186 — Note.— See alsb ss. 391 and 39SV of Criminal Code.]
Criminal law — Misapplication of moneys by pvblic servant — Audit
Act of 1874 (38 Vic, No. 12), s. 49*.
On an information under s. 49 of The Audit Ad of 1874 it is not necessary to
prove tliat tlie misapplication of public money was fraudulent, or that it was
misapplied or improperly disposed of with any intent whatever.
Crown Case Reseeved by Lutwyche J.
Wm. Highfield was tried before me at the last Criminal Sittings
■of the Supreme Court, held at Brisbane, under s. 49 of The Audit
Act of 1874, for that, while he was employed in the pubhc service
as Engineer of Waterworks, a certain sum of money amounting to
£83 12s. 8d. came into his possession and control by virtue of such
employment, for the use and benefit of certain other persons, and
that he feloniously misappUed £67 15s. of the same, contrary to
the provisions of that statute. A second count in the information
■charged him with improperly disposing of the same ; and there
were two other counts charging him with the misapphcation and
improper disposal of the same, he being a person Uable to account
for the receipt and expenditure of public moneys. It appeared
from the evidence given that in November, 1879, the prisoner
was in the public service as Engineer of Waterworks, and that
in that month he applied to Edward Deighton, Under Secretary
of the Department of Works, Brisbane, for authority to draw
on the Q.N. Bank at Ipswich for the sum of £83 12s. 8d., to meet
1880.
6th April.
Lilley C.J.
Lutwyche J.
Harding J.
* See Criminal Cede, s. 641.
118 QUDENSLAND JUSTICE OF THE PEACE.
R. V. H16HFIELD. a corresponding amount due for wages at Warwick for the month
of October to men employed in the Works Department. Mr.
Deighton gave the required authority to draw on the Bank,
and the prisoner drew for the amount, which was placed by the
Bank to his credit in an account which he then had at the Bank,
headed " William Highfield's PubUc Account." In the month
of November the prisoner had no more than that oiie account
at the Bank, his private account having been closed in October,
1878. The draft for £83 12s. 8d. drawn by the prisoner was
presented at the Office of Works, and Mr. Deighton gave his
official cheque on November 24 in exchange for it, and got a
disbursement of that sum. On November 19 the prisoner had
drawn a cheque against the amount placed to his credit at the
Bank under the authority given by Mr. Deighton. That cheque
was made specially payable to the order of Mr. Rodgers, who
was then engineer of the Warwick Waterworks. Mr. Rodgers
endorsed the cheque, and got it cashed at the Warwick branch
of the Q.N. Bank, and with the proceeds paid the wages of the
men in the Works Department, for whose benefit the prisoner
was authorised to draw on the Q.N. Bank at Ipswich. On
November 19 the prisoner drew against the same amount two
cheques to pay private creditors — one for £27 and one for £15 —
and up to November 28 inclusive he had drawn against the
amount cheques in favour of his private creditors, aU of which were
duly paid, amounting to £67 15s. The prisoner's cheque drawn
to the order of Rodgers was afterwards presented at the Ipswich
branch of the Bank and came back dishonoured, and at the time
of the trial stood to the debit of Rodgers in the books of the
Warwick branch. The prisoner had no authority from the
Government to open a pubhc account at any bank, and never
accounted in any way for the application of the money which
had been placed to his credit. In summing up I directed the jury
that it was not enough for the prisoner to show that the person
for whose benefit the money paid into the prisoner's credit was
intended had been paid by another person and from a different
source ; that the offence charged was not embezzlement, but
was created by the provisions of s. 49 of the Audit Act ; that
under that statute it was not necessary to prove any felonious
intent, the act of misappHcation or improper disposal being suffici-
ent to satisfy the statute ; that upon this information they had
only to be satisfied that by virtue of such employment the sum
of £83 12s. 8d. came into his possession for the benefit and use of
CRIMINAL EEPORTS, 1860—1907.
119
other persons, and that while it was in his possession he unlawfully ^- '"■ Hiohoteld.
misapplied or improperly disposed of a portion of it. Mr. Chubb,
who defended the prisoner, objected to my direction, and at
his request I reserve for the consideration of the Full Court the
following question : — " Was I right or wrong in my direction
to the jury on the matters of law contained in it ? " The prisoner
was convicted and sentenced to imprisonment, with hard labour,
in Brisbane Gaol, where he now remains.
Chubb, for the prisoner : There must be a fraudulent mis-
apphcation. In ss. 75, 76, 77 of The Larceny Act of 1865 (29
Vic, No. 6), the word " fraudulent " is used.
Griffith Q.C., for the Crown, cited B. v. Wynn, 1 Den. 365.
Ltjtwyche J. mentioned B. v. Dodwell, 4 S.C.R. 171.
Habding J. mentioned B. v. Prince, L.R. 2 C.C.R. 154.
LiLLEY C.J. : The Court is of opinion that it is unnecessary to
allege that the misapplication was fraudulent, or that it was mis-
apphed or improperly disposed of with any intent whatever.
Conviction affirmed.
Solicitor for prisoner : C. F. Chubb.
Lilley C.J.
[Full Cottkt.]
R. V. GOMEZ.
[5 S.C.R. 189.]
Criminal law — Jurisdiction — Torres Straits — Annexation of Islands
—18 and 19 Vic, c. 54, s. 46—24 and 25 Vic, s. 44—43 Vic,
No. 1, s. 1 — Prerogative of the Crown — Letters Patent — Murder.
The Supreme Court has jurisdiction over islands in Torres Straits included in
the area described in the Schedule to 43 Vic, No. 1, annexed pursuant to Letters
Patent issued by Her Majesty in 1872 and 1878, and the proclamation in the
Goitrnment Gazette of 21st July, 1879.
Cbown Case Resbbved by Sheppard J.
Maximo Gomez, alias Pedro, was tried at Cooktown on the 30th
April for the murder of William Clarke at Possession Island on the
24th December, 1879. The jury found the prisoner guilty, and
sentence of death was passed upon him, but the sentence was
respited, certain points of law being reserved. The island where
the offence was committed was situated, according to the evidence
1880-.
1st June.
Lilley C.J.
Harding J.
120 QUEENSLAND JUSTICE OP THE PEACE.
B. V. Gomez. of a witness, in Torres Straits, and was distant about a mile aad
a-half from the mainland. It appeared to the learned judge that
the jurisdiction of the Court depended on (1) the vaUdity of the
Letters Patent issued by Her Majesty the Queen, dated 10th
October, 1878 (upon which The Queensland Coast Islands Act of
1879 was founded), and (2) whether the islands, being situate
within a marine league of the mainland of AustraUa, the Court
had jurisdiction to try the prisoner independently of the Letters
Patent, the Act of Parliament 43 Vic, No. 1, and the subsequent
proclamation of His Excellency the Governor published in the
Government Gazette of 21st July, 1879. His Honor stated in the
case that s. 2 of 3 and 4 Vic, 62, gave power to Her Majesty by
Letters Patent to erect into a separate colony, or colonies, any
islands which were, or which thereafter might be, comprised
within, and dependencies of the colony of New South Wales.
By s. 7 of 18 and 19 Vic, c. 54, Her Majesty had also power to
erect into a separate colony or colonies any territories which
might be separated from New South Wales by alteration of the
northern boundary thereof ; and by s. 2 of 24 and 25 Vic, c. 44,
she could, by Letters Patent, annex to any colony on the conti-
nent of Australia any territories which in the exercise of the
powers therein mentioned might have been erected into a separate
colony. The difficulty which his Honour felt was as to the legal
effect of the Letters Patent of 10th October, 1878. The islands
in Torres Straits lying between the continent of Australia and
the island of New Guinea were never dependencies of or reputed
to be within the colony of New South Wales, and there was no
Imperial Act giving power to Her Majesty to annex to this colony
any islands which were not dependencies of New South Wales.
He was not aware that the islands in Torres Straits had ever been
taken possession of on behalf of the British Crown, nor did the
Letters Patent recite that such possession had been taken ; and
it appeared to him that as the boundaries had been defined by
Acts of the Imperial Parliament, or under their authority, those
boundaries could only be altered by an Act of the Imperial
Parliament or by the exercise of some power conferred by the
same authority. The question for the decision of the Court was
whether, under the circumstances, the Circuit Court at Cooktown
had jurisdiction to try the prisoner.
Pring, A.G., for the Crown, referred to the Proclamation, 22nd
August, 1872, in 13 Government Gazette 1324, based on Letters
Patent, dated 30th May, 1872, with regard to islands within
CRIMINAL REPORTS, 1860—1907. 121
sixty miles off the coast ; Letters Patent, 10th October, 1878 ; B- "• Gomez.
Proclamation, 21st July, 1879 ; 43 Vic, No. 1.
HAKDrsfG J., referred to 18 and 19 Vic, c 54, s. 46 (1 Pring 230.)
Griffith Q.C. for the prisoner, referred to the Letters Patent of
1862 (1 Pring 234), 3 and 4 Wm. IV., c 62 (1 Pring 189) ; and
submitted the questions to be considered were (1) whether the
island in question was affected by the Letters Patent of 1872
(ante) ; and (2) whether the boundaries of the colony should be
altered by Act or prerogative. (Chitty on Prerogative, p. 29 ;
R. V. Jimmy, 4 S.C.R. 130 ; Damodhar Gordham v. Deoram Kanji,
1 App. Gas. 332.)
LiLLEY C.J. : The matter appears to me to be perfectly clear Lillej C.J.
and I should be very sorry for it to go forth that there is any
doubt as to the jurisdiction of the courts of the colony over the
islands annexed to the colony by the Letters Patent of 1872 and
1878. It might be taken as a conclusion of fact that these islands,
up to the time Her Majesty assumeddominion over them, were
not under the dominion of any other power, nor within the ter-
ritories of any of the AustraHan colonies ; that, in fact, they were
islands which Her Majesty had power and was free to exercise
diminion over. Nothing can be clearer from a long chain of
history and practice that the Queen has the prerogative, by
Letters Patent, to erect unoccupied lands into colonies. She
may revoke those Letters Patent, or extend or Hmit the juris-
diction of the colony so erected; in fact, she has absolute power to
alter in any way the limit of the colony. These islands are in
that condition. Her Majesty had power to assume control over
them. She has done so, and it is not a matter which the Court is
at liberty to dispute that in issuing these Letters Patent she has
assumed lawful dominion over the islands therein mentioned.
The only question as to the vaHdity of the proceeding appears to
be this : Can Her Majesty, without the assent of the Legislature,
annex these lands to an existing colony with representative
institutions ? Caution had been observed in the matter, and the
islands were not annexed without the consent of the Queensland
Legislature. The last of the Letters Patent, at all events, were
issued upon the condition that a statute should be passed by the
colonial Legislature. Her Majesty's assumption of dominion is
perfeclty clear. In 1872 she created the Governor of this colony
the Governor of these islands, making provision at the same time
for becoming a part of the territory of the colony. The islands
122
QUEENSLAND JUSTICE OF THE PEACE.
E. V. Gomez. are therefore within the colony of Queensland, subject to the
LilieyC.J, jurisdiction of the Supreme Court of this colony, and the con-
viction must be upheld.
Harding J. Haeding J. : From the statutes cited it is seen that power had
been given to annex certain islands ; but we find nothing enacted
which would pervent Her Majesty adding other islands to a
colony with the assent of the local Legislature. Under these
circumstances it appears to me that Her Majesty had the power
to annex these islands, and that that power has been properly
exercised. I do not find it necessary for the purposes of the
present decision to deal with the other point in the case. I con-
cur with the Chief Justice in the formal judgment he has dehverd.
Conviction affirmed.
1881.
10th May.
[Full Cotjet.]
REGINA V. CORVIE AND LESNINI.
[1 Q.L.J. 1.— Note.— 31 Vic, No. 13, s. 65 is repealed. See now Justices Act
of 1886, s. 11.]
Caption — Admissibility of Depositions — 31 Vict., No. 13, s. 65.
! To make the depositions of a deceased person admissible as evidence, there
is no necessity for a general caption. The requirements of the statute, 31 Vic,
No. 13, s. 65, may be shown to have been complied with, from the whole
depositions.
The facts of this case are briefly these : —
The prisoners, Corvie and Lesnini, were charged at Gympie
in December, 1880, with an ''' attempt to murder " one Grisostolo.
Grisostolo died in January, 1881, and the prisoners were tried at
the Maryborough Circuit Court before Mr. Justice Pring in April
last, for the murder. The principal evidence against the prisoners
were the depositions of Grisostolo. At the trial, Corvie was
defended by Tozer (soUcitor), Lesnini, by Murray-Prior. At the
request of Prior and Tozer, Mr. Justice Pring reserved a case for
the decision of the Full Court. The depositions were objected to
as inadmissible evidence, principally, because there was no
proper caption within the statute.
The caption was in this form in each case : —
" Gympie, [25th] 30th December, 1880.
(Before J. Farrelly, J.P.)
Augustus Corvie, [Stephano Lesnini] charged with an attempt
CRIMINAL REPORTS, 1860-1907. 125
to murder one Celeste Grisostolo." It was proved at the trial Regina «. Cobvie.
, . ^ AND LeSNINI.
that Grisostolo was dead — that each prisoner was charged before
a justice of the peace with having attempted to murder Grisostolo
— that the deceased Grisostolo on each occasion, gave his evidence
before a justice of the peace in the presence of the accused —
that the evidence was taken on oath and that each prisoner ha_d
opportunity of cross-examination. Mr. Justice Pring admitted
the depositions against the prisoners, who were found guilty of
manslaughter, subject to the opinion of the EuU Court as to the
admissibility of the evidence."
Attorney-General for the Crown.
Murray Prior argued for Lesnini — and cited Reg. v. Newton,
1 F. and F. 641 ; Reg. v. Oalvin, 10 Cox C.C. 198.
The Court decided that the objections raised were not good in
law ; and that the depositions were rightly admitted. There is
no necessity that the caption to depositions should be exactly
similar to the form given under s. 65 of 31 Vict., No. 13 — provided
it be substantially the same. The requirements of the statute
may be shown to have been complied with from the whole depo-
sitions, not merely from the caption. Though thus there is no
necessity for a general caption, still it is desirable that the forms
given by the statute should be complied with. That taking the
depositions from beginning to end, the statute has been comphed
with.
Judgment affirmed against both prisoners.
Solicitor : F. I, Power, Gympie.
[Maeybokough Ciecuit Court.]
R. V. KENNEDY AND ROYSTON.)
[1 Q.L.J. 12.]
In the case of R. v. Kennedy and Royston, where Kennedy, 1881.
who was first on the information was undefended, and Royston 28thApi-il.
was defended by counsel. His Honor held that it was the practice PHng J.
of this colony, if no witnesses were called for the defence of -either
prisoner, that the undefended prisoner (in this case Kennedy),
being first on the information, had the right of first addressing
the Court and jury.
124 QUEENSLAND JUSTICE OP THE PEACE.
[In Chambbes.J
THE QUEEN v. LOUIS HUSTIN, CALLED LOUIS JOSEPH
WATIER.
n Q.L.J. 16 — Note. — See Commonwealth Extradition Act (No. 12 of 1903).]
1881.
8th lOih 15th Extradition Acts of 1870 and 1873, and the Extradition Act (Queensland) 1877,
June. and Extradition Treaty with Eranoe.
Pring J. On the application of G. E. Markwell, solicitor for Louis Hustin,
a confinee in Brisbane gaol, made on the 8th June, Pring J.,
granted a writ of habeas corpus, commanding F. R. Bernard,
keeper of H.M. gaol at Brisbane, to produce the body of Hustin
in court on the 10th instant.
On the said 10th day of June, Mr. Bernard having produced
the body, as commanded, and also the writ . of commitment,
Markwell moved the discharge of the prisoner on the several
grounds as contained in the affidavit of Hustin, which are fuUy
set out in His Honor's judgment infra : —
Cooper A.G., for the Crown, submitted that under article 16 of
the treaty, which provides that " the requisition for the surrender
of a fugitive criminal who has taken refuge in a colony or foreign
possession of either party, shall he made to the Governor or chief
authority of such colony or possession ; or if the fugitive has escaped
from a colony or foreign possession of the party on whose behalf the
requisition is ynade, by the Governor or chief authority of such colony
or possession," any of the persons mentioned in the article might
make the requisition, where the prisoner has escaped from a
colony ; that if the Governor of the colony was the only person
who could make the requisition, the words " Escaped from a
colony " could apply only to cases where the prisoner had been
sentenced by the local authorities in the colony, otherwise there
would be no reason why the Governor could alone make the
requisition.
As to the vaHdity of the warrant for arrest, he submitted that
under article 7 of the treaty, and s. 17 (2) of The Extradition Act
of 1870, the Governor of a British colony has the same power as a
police magistrate in England has under the Act ; and that there-
fore when once the prisoner has been arrested under the warrant
of the Governor and brought before the PoUce Magistrate, he had
jurisdiction to hear the case ; and further that it was not neces-
sary that he (the P.M.) should have sufficient evidence that the
prisoner had been sentenced for the particular crime charged in
the warrant ; it would be sufficient if he were found to have been
sentenced for any extraditable offence.
CEIMINAL REPOETS, 1860-1907.
125
Peing J. reserved his decision till the 15th instant, and on that
day he delivered the following judgemnt : —
Louis Hustin, called Louis Joseph Watier, was brought before
me on Friday, the 10th instant, by P. R. Bernard, keeper of Her
Majesty's goal, Brisbane, in obedience to a writ of habeas corpus,
ordered by me on the 8th instant to be issued on the application
of Mr. G. Markwell for the confinee, which writ was made return-
able before myself. Mr. Bernard handed in the writ and the
return which I ordered to be filed. The return was a warrant of
committal of Louis Joseph Watier, under the hand and seal of
Phihp Pinnock, Police Magistrate, of Brisbane, and was as fol-
lows : —
QITEBNSLAND TO WIT.
To Jlichael Doyle, constable, and to all other constables of the Queensland
Police Force, and to the keeper of the Brisbane Gaol.
Be it remembered that on the 26th day of May, in the year of our Lord 1881,
Louis Joseph Watier, late of the colony of New Caledonia, a colony or possession
of the realm of France, is brought before me, Philip Pinnock, Esq., Police Magistrate
for Brisbane, sitting at the Police Court at Brisbane, to show cause why he should
not be surrendered in pursuance of the Extradition Acts of 1870 and 1873, and
of a treaty entered into on the 14th day of August, 1876, between Her Majesty
and the then President of the French Republic, on the ground of his being con-
victed of the commission of the crime of fraudulent bankruptcy and forgery,
and uttering within the jurisdiction of the realm of France. And forasmuch as
no sufficient cause has been shown to me why he should not be surrendered in
pursuance of the said acts and treaty, —
This is therefore to command you, the said Michael Doyle, and to all other
police officers in the said colony, in Her Majesty's name forthwith to convey
and deliver the body of the said Louis Joseph Watier into the custody of the
said keeper of the gaol at Brisbane aforesaid, and you the said keeper to receive
the said Louis Joseph Watier into your custody, and him there safely to keep until
he is thence delivered pursuant to the provisions of the said Extradition Acts
and treaty, for which this shall be your warrant.
Given under my hand and seal at Brisbane, in the said colony of Queensland,
this 26th day of May, a.d. 1881.
Philip Pinnock, Police Magistrate.
Mr. G. Markwell then moved for the discharge of the confinee,
and sought to impeach the return on several grounds which are
set forth in the affidavit of the confinee, and he referred to this
affidavit, an affidavit of Tom Else, verifying an attached copy of
proceedings taken before the Police Magistrate, and an affidavit
of G. Markwell, verifying attached copies of a warrant under the
hand and seal of Sir A. E. Kennedy, Governor of Queensland,
and of a warrant of committal under the hand and seal of Phihp
The Qdeen u.
LoDis HnsTiN,
CALLED Louis
Joseph Watiek.
Pring J.
126 QUEENSLAND JUSTICE OP THE PEACE.
The Qdeen r. Pinnock, Police Magistrate, of Brisbane, which affidavits had been
LOUIB HUSTIN, ° i- 1
CALLED Louis filed and used on the application for the writ. Mr. Attorney-
JosEPH Watieb. Qenerai (Pope Cooper) appeared for the Crown, and making no
Pring J. objection, I allowed these affidavits to be used. The 'objections
above referred to are as follows : —
That the commitment is illegal on the following grounds : —
1. The requisition for my surrender was not made in accordance with the
provisions of the 16th article of the Extradition Treaty, but was made by Edward
Barrow Forrest, the vice-consul of the Republic of France, stationed in Brisbane,
and the said vice-consul made his requisition for my surrender to His Excellency
the Governor of Queensland, whereas the said requistion should have been made
to His Excellency the Governor aforesaid by the Governor or chief authority of
New Caledonia.
2. The said warrant states that I was convicted of the commission of the crime
of robbery, but there is not the least evidence against Louis Joseph Watier to
that effect. And the evidence adduced shows that Louis Joseph Watier was
detained in New Caledonia on the charge of fraudulent bankruptcy and falsification
of documents.
3. That the nature of the particular offence against the bankruptcy laws of
France is not set forth, so that it is impossible to say whether it is of such a nature
as would be deemed an offence against the bankruptcy laws of this colony.
4. That falsification of documents is not a crime set forth in the said Extradition
Treaty.
5. Under article 7 of the said treaty it is provided that the warrant shall clearly
set forth the crime of which the person claimed has been convicted, and state the
fact, place, and date of his conviction ; and I say that the warrant of His Excellency
aforesaid, by virtue of which I am now in custody, does not state the date of the
alleged conviction against me.
At the time I allowed these affidavits to be received I was of
opinion that they were not admissible to impeach the return, but
I thought they might be admissible for the purpose of showing a
want or excess of jurisdiction in the PoUce Magistrate. The
warrant of committal (the return) is in the form set forth in the
second schedule to The Extradition Act of 1870, and by s. 20 of
this Act, this form of committal, when used, shall be deemed to be
valid and sufficient in law. I am of opinion, therefore, that the
return is good on the face of it, and I decline to use the affidavits
for the purpose of impeaching this return, as I think they are
inadmissible for that purpose. This is a case which comes within
the statute 31 of Car. 2, c. 2, and the cases show that the Court
will not receive affidavits impeaching the return. {See case of
The Sheriff of Middlesex, 2 A. and E., p. 273 ; in the matter of
Clarke, 2 Q.B., p. 619 ; Brennan's case, 10 Q.B., p. 439, and Carus
CRIMINAL REPOETS, 1860-1907. 127
Wilson's case, 1 Q.B. 984, and the judgment of Lord Denham, ?^= Q??^" "•
JO ) Louis Hustin,
CJ ., p. 1008.) Unless, therefore, it can be proved by the affidavits called Lodis
that there has been a want or excess of jurisdiction, as I hold the Joseph Watieb.
return to be good, this motion must be discharged, and the con- Pring J.
finee, Louis Joseph Watier, will be remanded. I find no facts
disclosed in the affidavits which would warrant me in deciding
that in this case there was either a want or excess of jurisdiction.
The confinee was arrested by virtue of a warrant under the hand
and seal of Sir Arthur Kennedy, Governor of Queensland, and this
warrant is as follows : —
By His Excellency Sir Arthur Edward Kennedy, Knight Commander of the
3Iost Distinguished Order of Saint Michael and Saint George, Companion of the
Most Distinguished Order of the Bath, Governor and Commander-in-Chief of the
Colony of Queensland and its dependencies.
To all and each of the constables of the police force of Queensland.
Whereas a treaty was concluded on the 14th day of August, 1876, between Her
Majesty and the then President of the Fiench Republic for the mutual extradition
of fugitive criminals. And whereas, by an Order-in-Council of the 16th day of
August, 1878, setting forth the said treaty. Her said Majesty, by and with the
advice of Her Privy Council, under and by virtue of the authority committed to
Her by the Extradition Acts of 1870 and 1873, did order, and it was thereby
ordered, that from and after the 31st day of May, 1878, the said recited Acts
should apply in the case of the said treaty with the President of the French
Republic. And whereas in pursuance of the said treaty and the aforesaid Acts
a requisition has been made to me. Sir Arthur Edward Kennedy, Knight, Governor
of the colony aforesaid, by Edward Barrow Forrest, Esquire, whom I, the Governor
aforesaid, recognise as vice-consul for France in Queensland, for the siu-render
of Louis Joseph Watier, late of the colony of New Caledonia, a colony or possession
of the realm of France, convicted of the commission of the crime of robbery within
the jurisdiction of the said realm of France. These are therefore to command
you forthwith, in Her Majesty's name, to apprehend the said Louis Joseph Watier,
wherever he may be found in the colony of Queensland, and bring him before the
Police Magistrate at Brisbane, in the said colony, to show cause why he should
not be surrendered in pursuance of the aforesaid treaty and Ascts, for which this
shall be yom- warrant.
Given under my hand and seal, at Toowoomba, this 14th day of April, in the
year of our Lord 1881, and in the forty-fourth year of Her Majesty's reign.
A. E. Kennedy.
He was then taken before the Police Magistrate of Brisbane
(Mr. Pinnock), and charged with escaping from the settlement of
New Caledonia. It appears to me that under The Extradition
Acts of 1870 and 1873, and The Extradition Act (Queensland) 1877,
and the Extradition Treaty with France, that the Governor's
warrant for the confinee's arrest was good, and that the Police
128
QUEENSLAND JUSTICE OF THE PEACE.
The Queen v.
LoDis Hdstin,
called lodis
Joseph Watieb.
Pring J.
Magistrate, when the confinee was brought before him to be dealt
with under these Acts and this treaty, was, so to say, seized of the
case, and had jurisdiction to hear and adjudge upon it. By sub-
section 2 of the 17th section of The Extradition Act of 1870, it is
provided in reference to proceedings to be taken as to fugitive
criminals in British Possessions, that " No warrant of a Secretary
of State shall be required, and all powers vested in or acts author-
ised or required to be done under this Act by the Pohce Magis-
trate and the Secretary of State, or either of them, in relation to
the surrender of a fugitive criminal may be done by the Governor
of the British Possession alone." Since The Extradition Act
(Queensland) 1877 has by Order-in-Council become law, the mode
of procedure required by the Acts and treaty to be followed by the
Secretary of State and Pohce Magistrates in England would be the
most expedient course to follow (which course of procedure I
indicated during the argument). I do not think, however, that
the power conferred on the Governor by s. 17 (2) of The Extradi-
tion Act of 1 870 is taken away. The warrant of arrest in this case
I hold to be good in this respect. With regard to the first objec-
tion, I decide that Mr. E. B. Forrest, being recognised by the
Governor as vice-consul of France in this Colony, had authority
to make the requisition for the surrender of the fugitive criminal,
Louis Joseph Watier. Subsection 1 of section 17 of The Extradi-
tion Act of 1870, and article 16 of the treaty, give power to a
Governor in a colony to make the requisition, but this, however,
does not, I think, interfere with the power given to a consul or
vice-consul by the same subsection and article. The first objection
therefore is bad. The other objections appear to me to go to the
judgment and decision of the Pohce Magistrate, which I do not
feel myself at liberty to review. The formal judgment is that
this motion be discharged, that the writ of habeas corpus be
quashed, and that the confinee Louis Joseph Watier be remanded
to his former custody, under the warrant of committal exhibited
and filed as the return to the writ.
CRIMINAL REPOETS, 1860-1907.
129
[Full Court.]
CUNNINGHAM v. McFARLANE AND ANOTHER.
[1 Q.L.J. 49.— Note.— 17 Vic, No. 3, is repealed. See now s. 445 of Criminal Code.]
Cattle Stealing Prevention Act (17 Vict., No. 3).
To support a conviction for illegally using an animal under The CatUe Stealing
Prevention Act (17 Vict., No. 3), the user must commence by trespass.
Motion to make absolute a rule nisi for a prohibition granted
by His Honour The Chief Justice, at the instance of John Cunning-
ham against H. T. McFarlane (Acting P.M. at Roma) and W. S.
Paul, of the firm of Sloane & Co. Cunningham was in charge of
a flock of 20,000 sheep belonging to Sloane & Co., and when he
arrived in the neighbourhood of Roma he was superseded by one
Jones. Jones found him in a pubUc house, and produced a
document countermanding Cunningham's authority. Jones '
asked if there was any horse at the pubUc house belonging to
Sloane & Co. A horse was brought round which was identified
as belonging to Sloane & Co., and Jones thereupon proceeded to
remove the saddle and bridle, the property of Cunningham.
Cunningham then interfered, mounted the horse and rode away.
Cunningham, on his way to Roma, met Paul, who demanded
possession of the horse, but refused to produce his authority,
stating that he was Sloane & Co. Cunningham, who had been
appointed by one Kilgour, the New South Wales representative
of Sloane & Co., refused to recognise Paul, and rode away towards
Roma. Paul followed, and in Roma endeavoured to obtain
possession of the horse, and eventually gave Cunningham in charge
for illegally using, Cunningham, according to his account, having
ridden the horse in order to pay the wages of a man who had been
employed with the sheep. At the time of his arrest no actual
deUvery of the sheep to Jones had taked place. Cunningham was
fined £2 by the Roma Bench. The rule was granted upon the
following grounds, viz. : — (1) That there was no evidence tp show
that Cunningham had used the horse for his own pleasure, con-
venience, or profit, and (2) That he made a bona fide claim to be in
lawful possession of it.
Power moved the rule absolute.
Griffith Q.C. {Ringrose with him) showed cause on behalf of
Paul, and submitted that at the time the offence was charged the
horse was in the possession of Sloane & Co., by their agent, Jones,
who had taken possession of it at the pubhc house — that there
1881.
December.
Lilley C.J.
Harding J.
Pring J.
130
QUEENSLAND JUSTICE OP THE PEACE.
cunninoham v.
McFablane
AND AnoIHEB.
Harding J.
Pring J.
was a sufficient determination of the bailment, and the horse
being in the physical possession of Sloane & Co.'s agent, Cunning-
ham was guilty of an offence against the statute.
He quoted The Queen v. Steer (1 Denison's Crown Cases, 349).,
and submitted that there was ample evidence from which the
justices might find that the offence had been committed, the only
question was whether the bailment had been determined. If it
had been he was using the horse for his own pleasure, convenience,
or profit, and that a deliberate trespass of this kind was an offence
against the statute, and that the rule should be discharged.
Habding J. : This case comes before us on motion to make
absolute a rule nisi for a prohibition obtained from the Chief
Justice against a conviction made by certain magistrates against
one Cunningham for the unlawful user of a horse under The Cattle
Stealing Prevention Act. As I gather from the facts, Cunningham
was in possession of this horse and certain sheep and their appli-
ances, lawfully. It was alleged that an agent of the owners had
been appointed to retake possession of these sheep and horse
from Cunningham ; that Cunningham was, undoubtedly, immedi-
ately previous to the attempt to take possession, in possession of
a certain horse. I think that the evidence shows nothing further
than an attempt to regain possession of this horse from the agent,
and that if it does that, Cunningham had not admitted the ap-
pointment of the agent, which was in dispute, and consequently
there was a bona fide claim made to the horse by Cunningham,
which at the time the possession was alleged to be regained by
the agent had not determined. Unless the horse were taken
from the possession of a third party the party using it would not
be liable under this Act, in other words, as said by the Chief
Justice, the user must commence by trespass. The rule must
therefore be made absolute, with costs against Paul.
Peing J. : I am of the same opinion. I think the possession
was never out of Cuiuiingham to such an extent as to warrant the
action taken in this matter. The Act was never passed to meet
such a case as this. Rule absolute, with costs against Paul.
Solicitor for Cunningham : Chambers, agent for F. H. P.
Thompson, Roma.
Solicitors for Paul : Little, Browne, <fe Ruthning.
CEIMINAL REPOETS, 1860-1907. 131
[Full Cotjbt.]
REGINA V. GASH.
[1 Q.L.J. 54. — Note. — Offences agiunst the Person Act, s. 49, is repealed. See now
s. 215 of Criminal Code.]
Offences against the Person Act, s. 49, ^^**l-
6lh December.
Where an information contains in the very language of the statute a charge of
misdemeanour, except in respect to the introduction of the word feloniously, Ltlley G.J.
and there is no language that would contain a substantive crime in the nature of
ielony, the word fdoniously will be rejected as surplusage.
Crown Case Reserved.
This was a special case stated by Mr. Justice Harding.
The prisoner was tried at the Brisbane Criminal Sittings, on
the 2nd December last, upon an information charging him that
he, on the 23rd of August, 1881, at the South Pine River, in and
upon one Martha Chesterfield, a girl under the age of twelve
years, to wit, of the age of eleven years and eight months, felon-
iously did make an assault, and her, the said Martha Chesterfield,
then feloniously did unlawfully and carnally know and abuse.
The Attorney-General opened the case as an offence defined in
s. 49 of the Offences against the Person Act, and the case was so
treated throughout the trial by the Judge and counsel upon
both sides, Mr. Swanwick appeared for the prisoner. Martha
Chesterfield was examined and cross-examined. In her examina-
tion in chief she stated that she was twelve last Monday, and
gave the names of her parents, brothers, and sisters, and other
particulars. A duly certified copy of an entry in a Register of
Births, kept in the General Registry Office, Brisbane, was tendered
by the Attorney-General and received in evidence without objec-
tion. The entry was of a birth on the 28th November, 1869,
at German Station Road, of a female child named Martha, whose
parents' names were Thomas and Mary Anne Chesterfield. It
also contained the names and ages of their other children,
agreeing in such particulars with the statement of Martha
Chesterfield. Mary Anne Chesterfield (the mother) was examined,
and referred to Martha as one of her children. On one or two
occasions German Station was mentioned as a former residence
of the family. In charging the jury His Honor told them that the
above was all the evidence as to Martha's age before them, and
that if they were satisfied of her identity with the person named
Martha in the certificate of birth from a consideration of the
facts above stated, her age was fixed thereby, but they must be
132 QUEENSLAND JUSTICE OF THE PEACE.
Kegina v. Gash, satisfied that her age was between ten and twelve years, or find
the prisoner not guilty.. After the jury retired, Mr. Swan wick
called His Honor's attention to the fact that he had not told the
jury that there was no evidence of the identity of the person in the
certificate with Martha, and asked His Honor to reserve the point
for the consideration of the Full Court. The jury found the
prisoner guilty. Mr. Swanwick moved the arrest of judgment on
the following grounds : — (1) That the information charged the
prisoner with a felony, and the crime of which he had been found
guilty under the 49th section was a misdemeanour by statute.
(2) The prisoner being charged with a felony by the Crown, the
jury had left the Court, not in charge of any officer of the Court,
after the information was exhibited and before the verdict.
These points were not raised or urged to the jury at all, or to the
Court, until the times mentioned. His Honor postponed judgment
until the questions should have been considered by the Full Court.
The Attorney-General appeared in support of the conviction.
There was no appearance on behalf of the prisoner.
With regard to the first point the Court held that, inasmuch
as nothing was said to the jury, and no objection raised by the
prisoner's counsel during the trial, he must be taken to have
accepted the evidence regarding the girl's age as sufficient. It
could not allow counsel to lie by, they must deal fairly and
candidly with the Court. But independently of that there was
evidence to go to the jury as to the girl's age.
As to the second point. The Attorney-General submitted that
the word feloniously, in the information, was mere surplusage.
The Chief Justice referred to the case of the Queen v. Wilkie,.
the converse of this, in which the Judge (Lutwyche J.) at the
trial, upon his own motion, struck out the word feloniously in
the information as unnecessary. The man was convicted of
felony, the information containing a concise description of the
offence, but the word feloniously was omitted because the Judge
struck it out. The case came before the Full Court (Cockle C.J.,
and Lutwyche J.), and it was held that the word feloniously
was a word of art, and should have been put in, and the prisoner
was discharged.
The Attorney-General quoted Scofield's case (2 East's Pleas
of the Court, 1029), in which case it was held that the insertion
of the word feloniously did not constitute a felony, and if the
offence charged amounted to a misdemeanour and not a felony^
CEIMINAL REPOETS, 1860-1907. 133
the prisoner would be properly convicted and the word feloniously ^''Egina v. Gash.
rejected as surplusage, and submitted that the defect was cured
by the verdict, because the jury must have found the act to have
been urLla^\iul — that everything necessary to found a charge of
misdemeanor had been done.
The Court reserved judgment merely on the question of the
word feloniotisly having been used.
LiLLEY C.J. : I have had the opportunity of considering the Lilley C.J.
point made by the counsel for the prisoner. The facts appear
to be clearly these. Until the close of the trial no one averted to
the fact that the word feloniously had been introduced into the
information at aU. The man suffered no disadvantage whatever,
but was tried without a word of comment or objection for the
substantive misdemeanor under the statute. The section of the
statute was used, and the information contains in the very language
of the statute a charge of misdemeanor, except in respect of the
introduction of the word feloniously. I think that the word may
be rejected as surplusage. There is no case against it, and it
seems to me to be a construction of common sense. The language
of the information contains the substantive misdemeanor, and
there is no language that would contain a substantive crime in
the nature of felony in the information. The conviction must be
affirmed.
Peing J. : I concur. I consider a substantive offence against PringO
the 49th section of the Offences against the Persons Act is shown
in the information, and although it may contain the words
" feloniously did make an assault and her the said Martha
Chesterfield " — and also the word " feloniously " in the next
line — still, these words being left out, a substantive offence
appears in the information sufficient to charge an offence against
the 49th section. The conviction must therefore be affirmed.
Conviction affirmed accordingly.
134
QUEENSLAND JUSTICE OF THE PEACE.
1881.
7th Noiember.
Harding J.
[In Chambers.]
In re MINNIS.
[1 Q.L.J. 56 Note.— See also R. v. Kenniff, 1902 Q.W.N. 71, post.]
Gaol Regulations — Bight of Legal Adviser to interview prisoner
out of hearing of gaol officials.
Swanwick (legal practitioner) applied to Mr. Justice Harding
for a rule calling upon the Sheriff of Queensland to show cause
why he (Mr. Justice Harding) should not order the keeper of Her
Majesty's Gaol to permit Swanwick to interview Michael Minnis
(then in gaol on a charge of murder) at all reasonable hours up
to the day of his trial without the presence of the said gaoler
or other officials. Mr. Justice Harding made the rule absolute,
granting leave to Swanwick to interview the prisoner at all reason-
able hours, the gaoler and his officials to be at liberty to see the
parties during such interview but not to hear them, the gaoler
however to have aU the powers given to him under the Gaol
Regulations.
1882.
11th July.
Lillet/ G.J.
Harding J.
[Full Cottet.]
DOWLING V. FRITZ AND OTHERS.
[1 Q.L.J. 82.— Note.
-29 Vic., No. 5, s. 43, is repealed,
of Giiminal Code.]
See now ss. 390 and 46S
Malicious injuries to_ property — 29 Vic, No. 5, s. 43.
A snake does not come within the meaning of the iSrd section of 29 Vic, No. 5.
This was a motion to make absolute a rule nisi, granted at the
instance of Patrick DowUng, of Dalby, for a writ of prohibition
against C. R. Haly, P.M., of that place, James Skelton, J.P.,
and John Fritz, complainant in the Court below, in respect of a
conviction whereby Dowling was fined £10 for " maliciously
wounding a Tasmanian diamond snake " belonging to Fritz.
It appeared that Fritz, who was a showman, being about tO'
open a show on the Dalby racecourse, was putting his para-
phernalia over the fence, when some dispute occurred between
him and Dowling, who had purchased the gate privileges, and
the latter threw a box containing a snake over the fence, injuring
the animal so much that it was expected to " pine away and die."
Fritz stated that he had paid Mr. Jessop for the right to exhibit
CRIMINAL REPORTS, 1860-1907. 135
his show on the course, but not being allowed to take a dray Dowlinq v Fmtz
inside he was compelled to put his boxes over the fence. Dowling,
however, maintained that, as purchaser of the gate, he was
justified in the action he took, and said he did not throw the
snake over, but put it quietly through the fence. The informa-
tion was laid under the 43rd section of the Injuries to Property
Act (29 Vic, No. 5), which provides for punishing those who
" shall unlawfully and mahciously kiU, maim, or wound any dog,
bird, beast, or other animal, not being cattle, but being either
the subject of a larceny at common law, or being ordinarily kept
in a state of confinement, or for any domestic purpose." The
rule nisi was granted on the grounds : —
(1) That a snake was not a subject of larceny at common law, and not an animal
ordinarily kept in confinement ; and (2) that the injury, if any, was done in the
exercise of a bona fide right, the snake being at the time a trespasser.
Griffith Q.G. moved the rule absolute.
Garrick Q.G. showed cause, and cited in support of his argument,
Goke's Reports, 487 ; Rex v. Seering, R. ds Ry., Gr. Ga. 350 ;
Wilkinson's Queensland Magistrate, 392 ; Oke's Synapsis.
LiLLEY C.J. referred to an article in the Law Journal, April
I5th, p. 196, in which two EngUsh decisions, the one relating to a
Hon, and the other to a mouse, are commented upon.
Garrick Q.G. was stopped by the Court, who said the matter
would be decided on the first point.
Griffith Q.G. was not called upon.
LiLLEY C.J. : The Court has no doubt about the matter on the Lilley C.J.
first point. A snake was not covered by the description
" ordinarily kept in a state of confinement." The description
was genuine, and referred to animals which were allowed to go
in and out of their places of confinement — that was, animals
that were confined as a rule but not always. Snakes, as a class,
were certainly not kept in confinement. The rule would therefore
be made absolute on the first point.
Power argued for Fritz, that costs should not be granted
against him as the ground was a novel one.
The Court refused the application, and the rule was made
absolute with costs against Fritz.
Solicitor for DowUng, Thos. Bunton.
SoUcitors for Haly, P.M., Foxton & Gardew.
Sohcitor for Fritz, A. W. Ghamhers.
136 QUEENSLAND JUSTICE OP THE PEACE.
[Full Coubt.]
VICKERS V. SELLHEIM AND OTHERS.
[1 Q.L.J. 131.— Note.— 35 Vic, No. 4, s. 27, is repealed. See now s. 447 of Criminal
Code.]
^^^^- Brands Act, (35 Vic, No. 4), s. 27.
8th May.
The fact of a brand being found put over the registered brand of the owner
Prina^J °f * beast does not raise the presumption that the owner of the former brand
— '- either put it there or allowed it to be put there.
Motion to make absolute a rule nisi for a prohibition granted
by His Honour The Acting Chief Justice at the instance of George
Vickers against PhiUip Frederick Sellheim P.M., at Charters
Towers, Joseph Booth Whitehead, J.P., and John Inch, both of
the same place. A calf, the property of Inch, was branded by
him with his registered brand, and lent by him in company
with his mother to one Cass, a dairyman. While in Cass' posses-
sion, the cow and calf were lost sight of for some time, and
eventually the calf was found near Vickers' house with his registered
brand newly put over that of Inch. There was no direct evidence
of branding, and Vickers did not appear. The bench, consisting
of Sellheim and Whitehead, convicted Vickers of wilfully permit-
ting the calf to be branded with his registered brand, and fined
him £10, and £3 Is. 6d. costs. The rule was granted on the
ground that the evidence did not support the conviction.
Griffith Q.G. (Gore Jones with him), moved the rule absolute.
Feez showed cause, and submitted that under the 27th section
of the Brands Act, if there was sufficient evidence to support
the justices finding that the calf was permitted to be branded by
Vickers, the Court would not interfere with the finding that he
had wilfully permitted the same. This was decided by the late
Chief Justice, Sir James Cockle, in Ex parte Kelly, Wilkinson,
page 9. So that all the Court would have to find was, did Vickers
permit the calf to be branded with his registered brand. Of this
there was no direct evidence, but there was such presumptive
evidence as would support the conviction. The fact of Inch's
calf branded with his brand being found near Vickers' house
newly branded with his brand over Inch's brand raised such a
reasonable presumption that Vickers permitted it to be branded
that it was for him (Vickers) to rebut that presumption, and this
he had not done. If the Court held such evidence as this to be
insufficient the section of the Act might as well be cut out of the
CEIMINAL REPOETS, 1860-1907.
137
Statutes, for it was almost impassible to get direct evidence of
any offence under the section. On these grounds the rule should
be discharged.
Griffith Q.G. contended that to uphold such a conviction would
be to subvert all the principles of criminal law embodied in the
maxim " Every man is presumed to be innocent till proved
guilty." There was absolutely no evidence either direct or
presumptive of Vickers wilfully permitting the calf to be branded,
and the rule should be made absolute with costs.
Habding A.C.J. : This is a motion by Mr. Griffith to make
absolute a rule nisi granted by me on the 2nd April, 1883, for a
prohibition against the magistrates and the complainant pro-
ceeding on a conviction or order made 1st February, 1883, whereby
Vickers, the apphcant for the prohibition, was found guilty
of wilfuUy permitting to be branded with his registered brand a
certain white heifer. The offence was charged under s. 27 of
the Brands Act of 1872, which enacts, " If any person shall
wilfully brand any stock of which he is not the rightful owner or
shall wilfully cause direct or permit any stock of which he is not
the owner to be branded with his brand such person shall on
conviction for every such offence in a summary way forfeit and
pay any sum not exceeding fifty pounds." The requirement to
bring the offender within that section is that he shall wilfuUy
cause, direct, or permit any stock of which he is not the owner
to be branded with his brand. First of all you must have stock
branded with the brand of a person not the owner of that stock,
then you must show that that brand was wilfully permitted to be
placed on the stock by the owner of the brand. The meaning of
the word " wifful " is now understood to be and according to the
most recent decisions is " knowingly, and fraudulently." There-
fore a brand must have been permitted to be on the stock know-
ingly and fraudulently on the part of the person whose brand it is,
that is, that he must have permitted the brand to be placed on
stock of which he was not the owner with the fraudulent intent
in most cases to acquire the ownership in the stock. It was
contended by Mr. Feez, that the mere fact of the brand being found
on the stock would raise a presumption that the person whoSe
brand ft was had branded it and committed an offence. I can
see if a brand is found upon a beast and it is proved that the
owner of the brand put it there the law will presume he
put it there knowingly and fraudulently, but the mere finding
of a brand upon a beast without proving that the owner
VlOKERS V.
Sellheim and
Others.
Harding A.C.J.
138
QUEENSLAND JUSTICE OF THE PEACE.
ViOKERS V.
Sellbkim and
Others.
Harding A.C.J.
Pring J.
of the brand put it there or permitted it to be put there
does not connect the owner of the brand in any way with the
branding. Mr. Feez's presumption would go to this extent :
If John Smith was found murdered every person would be pre-
sumed to have murdered him ; but the proper way to look at
such reasoning is this : If A.B. had killed John Smith the pre-
sumption would be that he had murdered him until the contrary
was shown. Now here the only facts in the case are that the
heifer was the property of Inch, the respondent, that it had his
brand upon it, and that it was subsequently found with Viekers'
brand upon it, and shortly afterwards seen in the neighbourhood
of Viekers' residence, and further, the respondent said that
Viekers might have branded it in mistake. I can see no evidence
to connect him with the offence charged. Under these circum-
stances I think the evidence does not support the conviction,
and that this rule must be made absolute with costs.
Peing J. : I am of opinion that there was no evidence to
support the conviction, and that the rule must be made absolute
with costs.
Sohcitors for apphcant : Daly & Hellicar, agents for Marsland,
Charters Towers.
Solicitor for respondent : J. S. Salmond.
1883.
5th June.
Harding A.G.J.
Pring J.
[Full Cottet.]
REGINA V. EDWARD CAMM.
[1 Q.L.J. 136.— Note.— See now ss. 212 and 214 of Criminal Code. See R. v. Hinck-
ley, 2 Q.L.J. 182, post.]
Upon a charge of having carnally known and abused a female child under the
age of ten years, scientific evidence or the evidence of experts can be adduced
and is receivable as some evidence of the age of the child.
Special Case stated by Mr. Justice Cooper.
The prisoner Camm was tried before Mr. Justice Cooper at
Townsville, upon a charge of criminally assaulting an aboriginal
girl named Rosie, under the age of ten years. The only evidence
of the girl's age was given by two doctors, both of whom swore
positively that she was under ten years of age, basing their
opinion on the condition of her teeth. One stated that she was
between five and seven, and the other that she was about seven,
CEIMINAL REPOETS, 1860—1907.
139
while it was afBrmed that the teeth showed conclusively that „ BEGiNAti.
T. . , 1 rr,! ■ . T . Edward Camm.
Kosie was not ten years old. This evidence was objected to by
Mr. MUford, who defended the prisoner, but admitted by the
Judge as evidence that might be considered by the jury. In
summing up he told them that the age of the child was an in-
gredient of the offence, that it was a material fact, and it was
the duty of the Crown to establish that fact to their satisfaction
beyond a reasonable doubt : that the only evidence on the point
was the medical testimony and the presence of the child : that
the medical testimony was that of experts, and if from any
circumstances, whether from the appearance of the child or
otherwise, they had any doubt about it they were at Hberty to
reject it altogether, in which case the prisoner would be entitled
to an acquittal. The jury found the prisoner guilty, and he was
sentenced to penal servitude for Ufe. The question for the Court
was : — Was there sufficient evidence of Rosie's age to be left to
the consideration of the jury ?
The Attorney-General {Power with him), appeared for the Crown,
and supported the conviction on the ground that the sufficiency
of the evidence was a question for the jury.
The following cases were quoted : — Regina v. Wedge, 5 C. & P.
298 ; Regina v. Nicholls, 10 Cox C. Cases, 476 ; Garter v. Boehm,
1 Smith's L.C., 572 ; Regina v. Goode, 7 A. & E., 536.
The prisoner was not represented.
Harding A.C.J. : — This is a case stated for the opinion of this Harding A.C.J.
Court by Mr. Justice Cooper. The facts are sufficiently stated, in
the case, and have been read at the bar. The real question is
whether upon a charge of having carnally known, and abused a
female child under the age of ten years, scientific evidence or the
evidence of experts can be adduced and is receivable as some
evidence of the age of the child. That it is not the best and most
perfect evidence is seen at once, and where the best and most
perfect evidence is not obtainable as in this case I have no doubt
it is receivable, the value or weight of it being for the jury. The
law as stated by the learned Attorney-General, from Smith's
Leading Cases, 572, namely : — " The difference is, however,
perhaps less upon any point of law than on the appHcation of a
settled law to certain states of facts ; for, on the one hand, it
appears to be admitted that the opinion of witnesses possessing
peculiar skill is admissible whenever the subject matter of inquiry
is such that inexperienced persons are unUkely to prove capable
140
Eegina v.
-Edward Camm.
Harding A C. J.
Pring J.
QUEENSLAND JUSTICE OF THE PEACE.
of forming a correct judgment upon it without such assistance,
in other words, when it so far partakes of the nature of a science
as to require a course of previous habit, or study, in order to the
attainment of a knowledge of it " is now practically adopted in
all our text books. Here the doctors both swore that they were
able to form an opinion as to the age of the child, and one of them
gave certain details as to what induced him to form that opinion,
and it was for the other side to cross-examine the witness as to
his special knowledge upon the subject. It also apears that the
child was in court, and the jury could weigh the evidence and
inspect the child and judge for themselves. In this case the judge
drew the attention of the jury to the nature of skilled evidence,
and pointed out to them the danger of such evidence. I think
the evidence was admissible, and the conviction must be affirmed.
Pbing J. : I think the evidence was admissible, and having
been left to the jury with a proper direction by the judge, I see
no reason to disturb the conviction.
1884.
Sth February.
Harding A.G.J.
[Roma Circuit Couet.J
REGINA V. PARKER.
[1 q.L.J. 194.]
Delivery of Gaol.
Paekee's name appeared on the gaol calendar as standing
committed for trial for attempted suicide. Power, prosecuting
for the Attorney-General, stated that his name was on the calendar
by mistake, that he had been committed to the District Court.
His Honour directed the warrant of committal to be produced.
The gaoler produced it, stating there was no mistake, the warrant
committed the prisoner to Roma gaol till he was dehvered in due
course of law. It was endorsed in the margin in different ink from
the body " for trial at the sittings of the next Southern District
Court at Roma, 1884. James Raeten, A.C.P.S." James Raften,
whose name appeared in the body of the warrant, is a constable.
There was no other warrant against him, Mx. Power presented no
information, and His Honour discharged the prisoner.
CRIMINAL REPORTS, 1860-1907.
141
[Full Couet.]
REGINA V. BARTON.
[1 Q.L.J, supp. 16. — Note. — 29 Vic, No. 11, is repealed. See now chapter III. and
s. 360 of Criminal Code.]
Marriage — Time of celebration of — Validity of marriage — Bigamy
— Bigamous marriage beyond jurisdiction of the colony —
29 Vict., No. 11—28 Vict., No. 15, s. 11.
The 11th sect, of The Marriage. Act, 1864, is merely directory, and therefore a
marriage celebrated before 8 o'clock a.m. or after 8 o'clock p.m., is not on that
account void.
The statute, 9 Geo. IV., cc. 31 & 83, are repealed in this colony by 29 Vic,
No. 11, and the repeal is not limited by the latter or any other statute from affecting
the jurisdiction of the Supreme Court. Consequently, the Court has no jurisdiction
in the case of a bigamy or other offence committed outside of the colony and its
dependencies.
Special Case Reserved.
The prisoner, in the year 1874, was married in Queensland
by a minister. The marriage was regular in every respect except-
ing that it was celebrated after the hour of 8 o'clock p.m. Some
time after the celebration of this marriage the prisoner went
to England and there went through the form of marriage with
another woman, the first wife being still ahve, and then returned
to Queensland. The question reserved for the consideration
of the Court was whether the first marriage, having been celebrated
after- the hour of 8 o'clock p.m., was vahd.
Swanwick appeared for the prisoner.
Lilley C.J. : The question reserved by this case for our
decision is, whether a marriage after 8 o'clock in the evening was
valid ? If it was, then the prisoner's second marriage during the
life of his first wife was bigamous, and the conviction must be
affirmed. If the first marriage was not valid, then the second was
lawful, and the conviction must be set aside. Our decision
must depend upon the effect to be given to the proviso to the
11th section of The Marriage Act of 1864, which is as follows :—
" Provided that no marriage celebrated by any minister or regis-
trar shall be deemed to be legal or vaUd unless celebrated between
the hours of 8 o'clock in the morning and 8 o'clock in the evening."
It will be observed that the prohibition is absolute. It depends in
no way on the will, knowledge, intention, or good or bad faith of
the parties to the marriage. It is fatal to the innocent, who beUeve
1879.
8th August.
Lilley C.J.
Lutwyche J,
Harding J.
Lilley C.J.
142 QUEENSLAND JUSTICE OF THE PEACE.
Eeginaw. themselves to be marrying within the prescribed hours equally
' with the wilful or designing who may be knowingly marrying
LiUey C.J. q^^ ^f time. All the clocks in the village may indicate the hour
to be seven, but if it can be shown by exact scientific observation
that it was in fact one minute past eight, the marriage wiE be
void. At any time, however distant, the proof of this circum-
stance will avoid the marriage. Time has no healing influence
upon it. The evidence of some local philosopher with his chron-
nometer, if believed by a jury, will suffice to invalidate a marriage
solemnised in good faith, sever the long estabUshed and publicly
recognised relation of man and wife, reduce a seemingly legitimate
family to bastardy, and deprive them of their right to their
ancestors' property. The language of a statute must, however,
receive the interpretation conveyed by its ordinary meaning,
however cruel or oppressive may be the consequences. It is
binding upon us to give effect to the intention of the Legislature,
if it is clear and unmistakeable. If the whole law on the subject
is consistent, and pronounced to one end, it must take its course.
Section 12 of the statute which follows the above proviso, is as
follows : — " Every marriage which shall be celebrated by any
minister or registrar as aforesaid, after oath or solemn affirmation
so made, shall be a legal and valid marriage to all intents and
purposes, and no other marriage, except as hereinafter provided,
shall be vaUd for any purpose." This section would seem to be
unnecessary if it were not inserted to show that some of the
preceding requirements are essentials, whilst some of them are only
directory. If this section was intended by the Legislature to
point out all the essentials to the validity of the marriage, it is
inconsistent with the absolute terms and effect of the proviso
in the 11th section. In such a case there is a clear rule of interpre-
tation for our guidance, the later provision of a statute gives the
law and prevails over an inconsistent preceding one. Section 12,
when it speaks of a marriage " celebrated by any such minister
or registrar as aforesaid " means " celebrated by some minister of
religion ordinarily officiating as such " [s. 2], or " celebrated by
such registrar as aforesaid " — that is, in the manner prescribed
by s. 9. The mode of celebration by the registrar is prescribed
by s. 9 — " Where the parties to be married shall before the
Registrar for Marriages of the district within which the intended
wife ordinarily resides sign a declaration in the form set forth
in the schedule to this Act, marked A, the marriage may be
celebrated between such parties by such district registrar in the
CRIMINAL REPORTS, 1860-1907. 148
form of words set forth in the schedule hereto marked B, to be Rboina v.
, T , . , , , . , . Barton.
repeated and signed by the parties to such marriages respec-
tively." The words in schedule B once pronounced and signed LiUeyC.J.
by the parties, the marriage is complete and valid — " I
of do hereby declare, in the presence of A.B., Registrar of
Marriages for the district of , that I take of to
be my lawful wife, and I the said do declare that I take the
said to be my lawful husband." It is then " celebrated "
after oath or solemn afl6Lrm.ation so made. The oath is required
by s. 10, and is set out in schedule C. It seems to me quite clear
that the words as aforesaid in s. 12 have no reference to the hours
of celebration in the preceding proviso, and do not incorporate
them as essentials of a vaUd marriage. On looking to the
previous Marriage Act, 19 Vic, No. 30, ss. 2 to 6, from which s. 12
is copied without alteration, it will be seen that the words as
aforesaid refer to the mere form of celebration by the registrar.
Neither time nor place is mentioned in that statute. They can
have no reference to the mode or form of celebration by the
minister, because neither statute prescribes any mode or form
of celebration by him, and if they do not refer to the form or
mode of celebration by him in the present Marriage Act, they do
not incorporate the preceding proviso as to time. We should thus
have this result, that tim.e is essential to a marriage by the regis-
trar, but not by the minister, although they are both included
in the proviso. The words ' as aforesaid ' must thus be held
to be capable of receiving two inconsistent interpretations,
which is absurd. But further, if the words as aforesaid refer to
s. 11, they include the whole of that section, so that a marriage
in an ofl&ce not pubUcly used by the registrar, or with closed
doors, would be invalid, inasmuch as s. 12 declares that " no
other marriage (except as thereinafter provided) shall be valid
for any purpose." It is not unimportant to note that s. 12 is
preceded by a marginal note, " essentials for valid marriage."
Of the aid towards the interpretation of our modern Acts from
the marginal notes to the statute, I may quote the language of the
present Master of the Rolls : " 7w re Venour's Settled Estates
(L.R. 2 Ch. Div. 525) , this view is borne out by the marginal note ;
and I may mention that the marginal notes of Acts of Parliament
now appear on the Rolls of Parliament, and, consequently, form
part of the Acts ; and, in fact, are so clearly so that I have known
them to be the subject of motion and amendment in Parliament."
It is certainly valuable where it confirms an independent interpre-
M4 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. tation. The effect of my construction of s. 12 is not to repeal the
proviso to s. 11, but to reduce it to a direction obligatory upon
LiUey C.J. ^^^ minister or registrar not to celebrate a marriage except between
the hours of 8 in the morning and 8 in the evening, but the marriage,
if celebrated outside those hours, is still valid and binding. In
other words, the time is not an essential of a valid marriage.
I am aware that we are, as far as we possibly can, to interpret
the statute so as to preserve the actual language and its plain
meaning, and to harmonise it with the rest of the words of the Act.
We are to avoid imputing to the Legislature either ignorance of the
effect of their words or rashness of expression, but where their
last words are clear, and produce harmony of intention and
consistency of purpose in their legislation, they most prevail.
We must look at the whole chapter of the marriage law, both to the
preceding and subsequent statutes. On looking at s. 4 of the
latest Act, The Justices Marrying Act of 1872, we shall find it
enacted that, " It shall not be lawrful for any justice to celebrate
any marriage earUer than 8 o'clock in the morning, or later than
6 o'clock in the afternoon." The justice celebrating a marriage
out of time would do an unlawful act, followed by certain personal
consequences, but the marriage would be vahd. The whole
marriage law passed in review at that time [see s. 5], and was
incorporated in the Act of 1872, so far as it applied. Would the
Legislature provide that a marriage out of time before a justice
should be valid, and leave the law so that a marriage before a
registrar or minister out of time should be void ? It seems to
me that the Legislature had the same view of the law in their
minds that I have taken — that is, that the proviso to s. 11 of the
Act of 1864, read with the whole of that statute, made it merely
a breach of the law by the registrar or minister to marry persons
out of the fixed hours, but did not invalidate the marriage. It is
better to regard the proviso of 1864 as inaccurately, or even
carelessly expressed, than to impute something like folly to the
framers of the law. If the proviso avoids the marriage, it applies
only to persons marrying before a minister or registrar, and Jews
and Quakers may marry at any time. Nay, more, a marriage by
any persons before a person not lawfully authorised to celebrate
marriages, if but one of the parties were innocent, and beheves him
to be so, will be valid at any hour. Clandestine or runaway
matches, or the marriages of minors without consent, or upon a
forged consent, are not invalid. But marriages by persons of full
age, free from any legal impediment, and uniting themselves in
CEIMINAL EEPORTS, 1860-1907. 145
Beoina v.
Barton.
perfect good faith, with the sanction of every one interested in
securing a valid marriage, if beyond hours, are void. Every
other provision may be wilfully violated, and the marriage *'' '
shall be good. To be beyond time is the one fatal circumstance
in the whole law. It destroys what the policy of the law favors
and seeks to promote and uphold — marriage. Perjury, forgery,
a sham minister or registrar, the wilful marriage of minors without
consent, will not invalidate the marriage. Offences against
the Act are visited with penalties, which may be borne, because
they are nowhere inflicted, unless the law be " knowingly " or
" wilfully " violated. But the accidental circumstance of marriage
one minute out of time may bring upon innocent persons and their
offspring the loss of social status, rights, and property accruing
from the marriage relation. It seems to me, upon fair and neces-
sary rules of legal interpretation, I can say that the Legislature
had no such intention. The first marriage was vahd. This
interpretation declares the like law to exist for the minister,
registrar, or justice celebrating the marriage, and the one rule of
vaUdity for the marriage bond. The case was properly left to
the jury, and the conviction on the point raised at the trial would
be affirmed. But a more important — at all events, a seriously
important — question is raised upon the face of the case itself,
and that is, whether our Court has jurisdiction to try this offence.
On looking at the statement of the case it will be found that the
second marriage was celebrated in England ; the prisoner was
married in England by a minister of the EstabUshed Church.
Now, our statute, the Act relating to offences against the person,
declares that where the crime of bigamy shall have been committed,
whether the second marriage be in Queensland or elsewhere, it
shall be felony. It is a very clear rule of law that a legislature
of Umited jurisdiction can speak only within the limits of its own
territory, so that the words in this section must be read as though
standing " Queensland or its dependencies," to give them anything
like legal force. There can be no question whatever about the
matter, because all colonies can deal only with offences committed
within their own territory, except where the Imperial Parliament
has given jurisdiction. Previous to the 9 Geo. IV., c. 83, the
Superior Courts at Westminister had criminal jurisdiction in the
case of bigamy wherever the second marriage might have taken
place. That jurisdiction was given by the 9 Geo. IV., c. 31.
By the 9 Geo. IV., c. 83, the Courts of New South Wales and the
other colonies had given to them the same criminal jurisdiction
146
QUEENSLAND JUSTICE OP THE PEACE.
Eegina r.
Barton.
Lilley C.J.
Lutwyehe J
that the Court of Queen's Bench at Westminster had at the time
of the passing of that statute. The effect of that was, in my
opinion, to give to the Supreme Court of New South Wales and
of this colony jurisdiction in the case of bigamy wherever the
second marriage might have taken place. By our first Supreme
Court Act, passed, I think, in 1863 or 1864, the 9 Geo. IV., c. 83,
was repealed, but it was enacted that nothing therein contained
should diminish the jurisdiction of the Supreme Court. The
jurisdiction rested upon the Imperial Statute creating the crime
of bigamy, which is a creature of statute entirely. But in 1865
the local Legislature here entered upon the work of repeal and
amendment and consolidation. By seven different Acts they
undertook to consolidate and amend the criminal law of the
colony, they prepared the consolidation, and passed the various
Acts, one of them being the Act giving jurisdiction to the Court
over bigamy, where the marriage was celebrated, in Queensland
or elsewhere. When they had done that they repealed the
Imperial Statute, 9 Geo. IV., c. 31, the whole of it, and so cut away
from under their feet the Imperial legislation upon which the
jurisdiction of the Court stood in respect of bigamy. The juris-
diction of the Court then rested solely upon the local Act giving
jurisdiction to the Court where the second marriage took place,
in Queensland or elsewhere. We must read the Acts of the
Legislature as speaking within its own jurisdiction, and Queens-
land or elsewhere can only be read, in my judgment, as Queensland
or its dependencies. This marriage took place in England, after
the passing of the statute to which I have referred ; it was an
offence, therefore, not against our law, and not triable here.
I am of opinion, therefore, the conviction must be quashed.
LuTWYCHE J. : Many serious evils — pointed out by the Chief
Justice in his judgment — would result from the Court holding
that time was of the essence of the contract of marriage. While,
on the other hand, no practical inconvenience will follow from
an opposite conclusion. It is in the highest degree improbable
that any minister, registrar, or justice of the peace will wilfully
contravene the directory provisions of the statute by anticipating
or exceeding the period of time within which the Legislature
has declared that a marriage shall be solemnised, and thereby
expose himself to the heavy penalties imposed by the 25th section
of the Marriage Act of 1864. Oversights may indeed occur, but
they must be very rare. The present case is the first of the kind
that has been brought under the notice of the Court, although
CRIMINAL REPORTS, 1860-1907.
147
the Act in question has been in force nearly fifteen years. I
should be loath, however, in deciding this case, to found my
opinion in any degree upon the terms of the marginal note attached
to the 12th section of the Act. Whatever may be the case in
England, the marginal notes of colonial statutes, especially in
the earlier days of legislation, are notoriously unreHable. I will
only say, in answer to the fii-st question submitted to the Court,
that in my opinion the marriage of the 27th October, 1874,
was not an illegal marriage within the proviso of the 11th section
of the Marriage Act of 1864, but, on the contrary, was legal and
valid ; but, secondly, I think the case ought not to have been
left to the jury, and that the conviction cannot be sustained,
on the ground of want of jurisdiction. By the Criminal Statutes
Repeal Act, 29 Vict., No. 14, the Imperial Act, 9 Geo. IV., c. 31,
which regulated the law relating to bigamy, was repealed, and the
provisions of a Queensland statute, 29 Vict., No. 11, s. 58, were
substituted for it. As it is the second marriage which constitutes
the offence, the prisoner, who must be presumed for the purposes
of this part of the case to be a subject of Her Majesty, might
have been tried in England, but was not properly tried here.
The Imperial Act, 24 and 25 Vict., c. 100, s. 57, of which the 58th
section of our colonial Act is a transcript, would have been appU-
cable if the second marriage had been celebrated in Queensland,
and the trial had taken place in England, because the Imperial
Parliament has power to pass laws which are binding on aU Her
Majesty's subjects, wherever they may be ; but the laws of
Queensland are only binding within the Umits of the colony and
its dependencies.
Harding J. : I agree with what has been said by their Honors.
To my mind, the first question turns upon the construction of the
proviso to the 11th section of the Marriage Act of 1864 — " Pro-
vided that no marriage celebrated by any minister or registrar
shall be deemed to be legal or vahd unless celebrated between
the hours of eight o'clock in the morning and eight o'clock in the
evening " — whether that proviso is merely declaratory or im-
perative ; reading the proviso by itself it would seem to be im-
perative. But to ascertain whether it is or not, it has to be
considered whether or not it is cut down by the 12th section,
which enacts that " Every marriage which shall be celebrated by
any such minister or registrar as aforesaid after oath or solemn
affirmation so made shall be a legal and vahd marriage to all intents
and purposes and no other marriage except as hereinafter pro-
Eeqina v.
Bakton.
Lutwyohe J.
Harding J.
148
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
Bakton.
Harding J.
vided shall be valid for any purpose." Now, what is referred to
by the words ' as aforesaid,' do they refer to the qualification,
of the minister or registrar alone or coupled with the celebration ?
I take it that they do not refer to the qualification of the minister
or registrar alone,— the word ' such ' before the words ' minister
or registrar ' would have been sufficient for that without the
words ' as aforesaid,' consequently it refers to every marriage
which shall be celebrated — that is, the fact of celebration — in.
short, any marriage accomplished or through which the form
has been gone. Returning to the proviso, it has no effect until
the marriage is celebrated, in fact, it recognises under what has
gone before that a marriage may be celebrated at any time
legally, and then it purports to avoid such marriage after cele-
bration if celebrated between the hours mentioned. The cele-
bration of the marriage, which must be complete before the
proviso takes effect, is legahsed by s. 12 — this is exactly the
opposite to the proviso — the proviso and s. 12 are therefore
actually repugnant, and the proviso as an imperative enactment
must give way to the 12th section and consequently be construed
as being directory only ; it certainly does not avoid the marriage.
I answer the first question in the negative.
Then with regard to the second question and the point which
has arisen upon the case itself. The second marriage appears
to have been celebrated in England, outside the Hmits of the
jurisdiction of this colony. Now by the Charter of Justice Act,
9 Geo. IV., c. 83, s. 24, the laws of England then in force were
given to the colony of New South Wales. During the session
of ParUament in which that Act was passed there had also been,
passed the Act, 9 Geo. IV., c. 31 — " The Injuries to Persons Act."
The 22nd section of that Act relates to bigamy, and in effect
enacts that any person marrying during the hfe of the former
husband or wife shall be guilty of felony, whether the second
marriage shall have taken place in England or elsewhere. That
being the law the case of Reg. v. Packer (3 N.8.W. Reports 40)
arose in New South Wales before Separation, and came before the
Supreme Court of that colony upon a special case stated by His
Honor Sir Alfred Stephen. The prjpcipal facts of the case need
not be mentioned except so far as the question raised by the
Chief Justice in the 8th par. : " After the verdict I announced
that I should reserve also the point following of my own authority.
The statute of Geo. IV., c. 31, which contains the enactment
in force in this colony on the subject of bigamy was appUed to
CRIMINAL EEPORTS, 1860—1907.
149
New South Wales and Tasmania by the Act of the British Parha-
ment, 9 Geo. IV., c. 83, s. 24, being the general extending section
applicable to both colonies. But it occurs to me as deserving
consideration, whether the effect of the statute, 9 Geo. IV., c. 31,
s. 22, so extended to New South Wales as aforesaid, makes the
offence of marrying in Tasmania, for instance, cognizable and
punishable in New South Wales. I submit this question for the
opinion of the Court, together mth the others which were raised
at the instance of the prisoner's counsel." So it appears that at
that tim.e, when this colony formed part of the colony of New
South Wales, the doubt, whether under the Imperial Statute the
Court had jurisdiction was exploded by the decision in this case,
at page 48. The Chief Justice, in his judgment, says : — " The
doubt which I suggested at the trial has been removed by further
considering the words of the statute creating this offence. That
statute was, by the 9 Geo. IV., c. 83, incorporated in our laws,
and is therefore the law of the colony. If the enactment has been
passed by a colonial legislature it would have no force as to
marriages contracted elsewhere than in the colony legislating.
But the British ParUament has legislative authority over aU the
colonies, and over all British subjects everywhere. I think,
therefore, that the courts of this colony have jurisdiction over the
offence, although committed out of the colony." That case was
subsequently followed by Reg. v. Rogers, 9 N.S.W. Reports, 34.
Since then the legislature of this colony, I assume, with a know-
ledge of the law and the effect of these decisions, has by subsequent
enactments done something which has had the effect of lessening
or diminishing the jurisdiction of this Court, as I hold there
can be no doubt as to the meaning of the legislature when it
passed The Criminal Statutes Repeal Act of 1865. Before it
had passed that Act it had passed The Offences against the Person
Act of 1865, the 58th section of which relates to bigamy. That
Act in that section merely took the corresponding section of the
EngUsh Act, 9 Geo. IV., c. 31, and altered the word " England "
to " Queensland," and otherwise adapted it to this colony. The
Criminal Statutes Repeal Act of 1865 recites, that by several Acts
of the then present session of Parliament of which The Offences
against the Person Act formed one, divers Acts and parts of Acts,
amongst which 9 Geo. IV., c. 31, was included, have been con-
soUdated and amended, and that it is expedient to repeal the
enactments so consolidated and amended, and proceeds to repeal
amongst others the Act 9 Geo. IV., c. 31. Consequently, this
Rbgina II.
Barton.
Harding J.
150 QUEENSLAND JUSTICE OP THE PEACE.
Ebgina v. 22nd section of 9 Geo. IV., c. 31, was swept away, and being swept
t ' away nothing remained but the enactment passed by the colonial
Harding J. legislature — namely. The Offences against the Person Act of 1865,
which has no force in respect of marriages contracted beyond
the colony. Should this conviction be sustained, another difficulty
strikes my mind. A prisoner who has once suffered his punish-
ment is entitled to plead that he has been convicted and sufiered
the puishment, and is not liable to be again convicted for the same
offence. Now in another British possession some distance away
from here, supposing this man was tried again, he would say
that he had been already tried and convicted, and had suffered
his punishment in this colony under the ConsoUdated Act. The
Court trying him would say it was beyond the power of the
Queensland legislature to enact an Act whereby a crime, which
is local, and which had been committed outside their jurisdiction,
is made amenable to the laws of Queensland, and he would be
convicted and punished ; and so he might be tried and punished
in every place of Her Majesty's dominions where there is a separate
jurisdiction. The strange result of this legislation seems to be
that this is the only part of Her Majesty's dominions where this
man is safe. The answer I give to the second question is, that
this Court has no jurisdiction.
Attorney for the prisoner : N orris.
[In Chambers.]
REGINA V. McMURDO AND DAVIES.
[2 Q.L.J. 10.— Note.— See also R. v. Pierson, Ex parte Small, 1906 S.R.Q. 5, and
McKelvey v. Meagher, 4 C.L.R. 265.]
1884. Fugitive Offenders Act of 1881 — Foreign Jurisdiction Acts.
Her Majesty has, within the jurisdiction of the High Commissioner for the
Lilley C.J. Pacific, dominion within the meaning of the Fugitive Offenders Act of 1881.
Held, that in this case the prisoners were fugitives from that part of Her Majesty's
dominions, and that there was jurisdiction to arrest them within this colony and
to return them to the High Commissioner. Held, also, that the warrant under
which the prisoners were arrested and its endorsement were in all respects
sufficient.
This was a return to a writ of habeas corpus. The facts of the
case appear sufficiently from the judgment.
The writ was obtained on the following grounds : — (1.) That
CRIMINAL REPORTS, 1860—1907.
151
the warrant under which the prisoners were arrested did not
disclose any offence within the meaning of the Fugitive Offenders
Act of 1881. (2). That it did not appear upon the face of the
warrant that the prisoners were fugitives, within the meaning of
the Act. (3.) That the endorsement of the Governor did not
disclose, and there was no evidence to show, that the Governor
was satisfied that the warrant was issued by some person having
authority to issue the same. (4.) That the warrant was not
properly authenticated ; and (5) that the warrant was not issued
by a person having authority to issue it.
Rutledge A.O. and Chvbh Q.C. appeared for the Crown and
for the High Commissioner of the Pacific. Power appeared for
the prisoners.
The Attorney -General contended that the warrant itself disclosed
an offence within the meaning of the Fugitive Offenders Act of
1881, namely that of arson. Section 9 provided that it should
" apply to the following offences, namely, to treason and piracy,
and to every offence, whether called felony, misdemeanour,
crime, or by any other name, which is for the time being punish-
able in the part of Her Majesty's dominions in which it is com-
mitted, either on indictment or information, by imprisonment
with hard labour for a term of twelve months or more, or by any
greater punishment." That in the place where the offence
was committed there was no local statute which declared that
arson was a felony, but that the Order-in-Council of 1877 provides
for the estabUshment of the High Commissioner's Court, and that
s. 23 of that Order, when taken in conjunction with s. 27, gives
the High Commissioner's Court power to deal with offences
committed within the High Commissioner's jurisdiction, and to
give the punishment awarded by the English law for the time
being. That the law of England makes arson a felony, and
punishable by more than twelve months imprisonment, and
therefore it is an offence within the provisions of the Act of
1881. That there being jurisdiction on the part of the High
Commissioner's Court to punish offences under s. 9 of the Fugitive
Offenders Act of 1881, he submitted that the warrant which
had been issued for the arrest of the prisoners, was good
and unimpeachable, that the warrant was precisely such
a warrant as would be issued in England for the
crime of arson, and that on the first ground the contention
on the part of prisoners was untenable. On the second
ground, he contended that it was not necessary to show in the
Beqina v.
MoMttRDO AND
Davies.
152 QUEENSLAND JUSTICE OF THE PEACE.
Begina r. warrant that they were fugitives. The fact that the warrant is
Davies. to ^^ backed by a magistrate, by the Governor in this case,
shows that the person whose arrest was sought was a fugitive
from the place where the offence was committed. It might
be contended on behalf of the prisoners that they were not " found "
within the meaning of the second section of the Act, one of them
having been brought from Adelaide. He submitted that a man
was " found " where he was actually present at the time, and that
although in the present case one of the prisoners is not in Queens-
land voluntarily he is nevertheless under s. 2 " found " in this
colony. Reg. v. Lopez, 27 L.J., M.C., 48. Whether the prisoners
were fugitives within the meaning of the statute would depend
upon the question whether the High Commissioner had authority
to issue a warrant for the apprehension of fugitives from the
Westem|Pacific. [|v;^|^
[i^I'Ae Chief Justice : It is enough for me that Her Majesty
has established civil and criminal jurisdiction, and appointed
officers to exercise that jurisdiction over all the islands in the
Western Pacific, not being within the jurisdiction of any civilised
power. I have no doubt the High Commissioner has power
to issue the warrant. Then the question arises whether s. 2
appUes to the return of prisoners from the colony of Queensland
to the jurisdiction of the High Commissioner. I have no doubt
about that, if the procedure is right and the warrant and all its
requisites are properly set out. I cannot go behind the warrant.
The Attorney-General said he would not trouble His Honor
further upon the question of jurisdiction. Then as to the third
point, he submitted that there was nothing in the Act to suggest
how the Governor was to endorse upon the back of the warrant
that he was satisfied. The mere fact of his signing his name
was proof that he was satisfied, and that it must be taken that
the Governor, in endorsing the warrant, had acted rightly. That
the satisfaction was a thing in the Governor's mind, and he
communicated the effect of that satisfaction by endorsing the
warrant in the prescribed manner. As to the fourth point, he
contended that the seal of the Court of the High Commissioner
showed that the warrant was properly authenticated. The fifth
point, he submitted, was covered by the ground already gone
over.
Chubb Q.C. contended as follows : 1. The warrant sufficiently
discloses a criminal offence within s. 9 of the Fugitive Offenders Act
of 1881. Technicality in charging the offence was not required
CEIMINA.L REPORTS, 1860—1907. 153
by the Act. No objection could be taken to proceedings for Eeoina v.
want ot torm ; Order-m-CounciI, 1877. A warrant m general Daties.
terms is sufficient. Ex parte Terraz, 4 Ex. D., 63. The offence
is arson, and is properly stated. 2. The prisoners are fugitives.
Foreign Jurisdiction Act, 1878, ss. 3, 5. Order-in-Council 1879,
No. 15. Fugitive Offenders Act, 1881, ss. 2, 36. 3. The warrant
is properly authenticated. It has the seal of the High Com-
missioner's Court, which is a superior court — Order-in-Council,
1879, No. 15. It is therefore a judicial proceeding of which this
Court wiU take judicial notice, and is proved by the seal. Evidence
and Discovery Act, s. 39. There is a conclusive presumption in
favour of the regularity of judicial proceedings 1 Taylor on Evidence,
101. The warrant requires no signature — Order-in-Council, 1877,
No. 16, 135, and Form 5, warrant and Order-in-Council, 1879,
No. 6 — but must be sealed. 4. It will therefore be presumed
to have been issued by a person duly authorised. 5. The endorse-
ment by the Governor is evidence of satisfaction. It will be
presumed that he has acted rightly — omnia proesumuntur, &c.
Endorsement is in his discretion, which this Court will not, if it
could, review. It is a question of the quantum of evidence suffici-
ent to satisfy, of which the Governor is the judge. Beg. v.
Maurer, 10 Q.B.D., 513.
Power submitted that the Crown must satisfy his Honor
beyond any reasonable doubt that the persons seeking to detain
these prisoners had authority by law to do so, that it was quite
clear from the statutes and Orders-in-Council that a great differ-
ence existed between Her Majesty's jurisdiction in Her own
dominions and in islands not under civilised power. He cited the
preamble to the Fugitive Offenders Act, and s. 2, and contended
that the words " an offence committed in one part of Her
Majesty's dominions," and to the offenders " leaving that part
and being found in another," meant part of Her Majesty's domin-
ions as distinct from the Western Pacific Islands, over which she
exercises power and jurisdiction. By s. 6, the fugitive is to
be returned to that part of Her Majesty's dominions from which
he is a fugitive, but he took it that it was not intended in this
case to return these men to the Laughlan Islands, which are
not within Her Majesty's dominion, but to take them to the
capital of Fiji. - Section 8 provides that after he is taken back he
must remain in the place for six months. Section 9 declares that
the offence must have been originally committed within Her
Majesty's dominion. That no Order-in-Council had been made
154 QUEENSLAND JUSTICE OP THE PEACE.
Eegina v. under s. 36, and that there must be a special Order-in-Council
Davies, made after the Act was passed. That the warrant ought to have
set out that the offence was one punishable with twelve months
imprisonment or more. That the authentication of the warrant
must be proved. That the endorsement must shew that the
Governor is satisfied that the warrant was issued by some person
having authority in manner provided by s. 26 of the Act. He
referred to Nash's case, 4 5. cfc Aid. 295, and Deybel's case, ibid.,
243, to show that it was necessary to state what proof was given.
Chubb Q.C., in reply : " Dominions," in the 2nd section of the
Fugitive Offenders Act of 1881, not only means the territorial
dominions of Her Majesty but the parts and places not within
the dominions where she exercises power and jurisdiction. The
Fugitive Offenders Act of 1843, ss. 1, 2. It is settled usage that,
as a general rule, persons belonging to a state cornmunity, when
in places not within the territorial jurisdiction of any power,
are in the same legal -position as if on the soil of their own state.
Hall on International Law, 207. The Foreign Jurisdiction Act
of 1878, s. 3, empowers the Queen-in-Council, by order, to extend
the Act of 1843 and other Acts mentioned in the schedule, or any
Acts in force for the time being, amending or substituted for
the same to any country or place to which for the time being
the Act of 1843 applies, whereupon such country or place assumes
the character of a colony, with Her Majesty-in-Council as its
legislature ; and the 5th section of the same Act extends the Act
of 1843 over Her Majesty's subjects resident in or resorting to
countries or places not under regular Governments. The Court
and jurisdiction of the High Commissioner was established by
Order-in-Council in 1877. A further Order-in-Council in 1879
extended the Act of 1843, or so much of it as was in force, or any
Act amending the same or in substitution for it, to the Western
Pacific Islands. Then came the Act of 1881, in substitution
for the Act of 1843, which it repealed. The Acts of 1843 and
1878, with the Order-in-Council of 1877, were sufficient in them-
selves to constitute the Laughlan Islands " dominions " within
the meaning of the Act of 1881, but if not, the Order-in-Council
of 1879 apphed the Act of 1878 as an amending statute, and
prospectively the Act of 1881 as an Act in substitution for that of
1843, and Her Majesty has thereby power aitd jurisdiction,
which is " dominion," in those islands.
His Honor reserved his decision and on June 4th delivered the
following judgment : —
CRIMINAL REPORTS, 1860-1907.
155
Lilley C.J.
LiLLEY C.J. : The prisoners have been brought up on a writ ,,^5*'"* "■
. '^ 1 MOMUBDO ANI>
oi habeas corpus, and upon that an application has been founded Davies.
for their discharge. They were arrested by virtue of the followinsj
warrant : — ■
To John Fowley, police officer, and other officers of this Court.
William M'Murdo and Joseph Griffith Davies, British subjects, have this day-
been charged before this Court for that they did, on or about the 8th April, in the
year of our Lord 1883, at Laughlan Islands, such islands being islands in the
Western Pacific Ocean, not being within the limits of any British colony, and
not being within the jurisdiction of any civilised power, feloniously, unlawfully,
and maliciously set fire to certain dwelling houses the property of one Tamiu and
others, with intent thereby then to injure the said Tamiu and others, against
the form of the statute in such case made and provided, and against the peace of
Our Lady the Queen, Her Crown and dignity.
Therefore you are hereby commanded in the name of Her Majesty Queen
Victoria, forthwith to apprehend the said William M'Murdo, and to bring him
before this Court to answer to the said charge, and to be further dealt with accord-
ing to law.
Then, that warrant bears the seal of the Court of the High Com-
missioner for the Western Pacific. This warrant was issued by
the Court of the High Commissioner of the Western Pacific,
and is to be enforced, if at aU, by virtue of the Fugitive Offenders
Act of 1881. By s. 2 of that Act it is enacted —
Where a person accused of having committed an offence (to which this part
of this Act applies) in one part of Her Majesty's dominions has left that part, such
person (in this Act referred to as a fugitive from that part) if found in another
part of Her Majesty's dominions, shall be liable to be apprehended and returned
in manner provided by this Act to the part from which he is a fugitive.
A fugitive may be so apprehended under an endorsed warrant or a provisional
warrant.
The warrant bears the Governor's endorsement, under s. 3, which
endorsement is as follows : —
To all constables of police for the colony of Queensland.
These are to authorise you to execute the within warrant within the said colony,
by apprehending the within-named William M'Murdo, and bringing him before
William Henry Day, Esq., acting police-magistrate at Brisbane, or some other
police-magistrate of the said colony, to be dealt with according to law.
Given under my hand, at Government House, this 15th day of May, 1884.
A. MusOKAVE Governor.
S. W. Griffith.
The warrant in the case of Davies is in exactly similar words.
Both are in Uke form, arid bear the Hke endorsement. By s. 3
it is enacted that the Governor of a British possession, " if satis-
156
QUEENSLAND JUSTICE OP THE PEACE.
Eegina u.
MoMuBBO iND
Davies.
Lilley C.J.
fied that the warrant was issued by some person having lawful
authority to issue the same, may endorse such warrant in manner
provided by this Act, and the warrant so endorsed shall be a
sufficient authority to apprehend the fugitive in the part of Her
Majesty's dominions in which it is endorsed, and bring him before
a magistrate." On the prisoners' behalf it has been contended
that it does not appear that they are fugitives within the meaning
of that statute, on the ground that they have not left any part
of Her Majesty's dominions, and that the offence was not com-
mitted within any part of Her Majesty's dominions within the
meaning of the statute. Upon this the question of jurisdiction
has been raised ; whether the power and jurisdiction of Her
Majesty within the Western Pacific Islands exercised by the
High Commissioner is included within the word " dominion "
in the Fugitive Offenders Act, and whether the prisoners can be
treated as fugitives from any part of Her Majesty's dominions ?
The solution of this question depends upon the nature of Her
Majesty's power or jurisdiction within the Western Pacific
Islands. I shall consider the question entirely in connection
with the Foreign Jurisdiction Acts, the Western Pacific Orders-ia-
Council, and the Fugitive Offenders Act of 1881. The Foreign
Jurisdiction Act of 1843 is described as " an Act to remove doubts
as to the exercise of power and jurisdiction by Her Majesty
within divers countries and places out of Her Majesty's dominions,
and to render the same more effectual." After reciting —
That byftreaty,f capitulation, grant, usage, sufferance, and other lawful means,
Her Majesty hathfpower and jurisdiction within divers countries and rlacesTout
of Her Majesty's dominions : And that doubts have arisen how far the exercise
of such power and jurisdiction is controlled by and dependent on the laws and
customs of this realm, and it is expedient that such doubts should be removed —
by s. 1 it is enacted —
That it is and shall be lawful for Her Majesty to hold, exercise, and enjoy any
power and jurisdiction which Her Majesty now hath, or may at any time hereafter
have, withinfanyfcountry or place out of Her Majesty's dominions, in the same
and as ample a manner as if Her Majesty had acquired such power or jurisdiction
by the cession or conquest of territory.
By s. 2 it is enacted —
That every act, matter, and thing which may at any time be done, in pursuance
of any such power or jurisdiction of Her Majesty, in any country or ijlace out of
Her Majesty's dominions, shall, in all courts ecclesiastical and temporal and
•elsewhere within Her Majesty's dominions, be and be deemed and adjudged to be,
in all cases and to all intents and purposes whatsoever, as valid and effectual as
CEIMINAL REPORTS, 1860—1907.
15T
though the same had been done according to the local laws then in^oroe within
such country or place.
On the 13th August, 1877, by Order-in-Council, Her Majesty
estabUshed civil and criminal jurisdiction within the islands
of the Western Pacific, in pursuance of the Pacific Islanders
Protection Acts of 1872 and 1875 and the Foreign Jurisdiction
Acts from 1843 to 1875, and by virtue of any other powers in
Her Majesty vested. By Article 5 of that Order-in-Council,
the jurisdiction extends and applies to certain named islands,
and to " all other islands in the Western Pacific Ocean not being
within the Umits of the colonies of Fiji, Queensland, or New South
Wales, and not being within the jurisdiction of any civilized power,
and to the waters within three miles of every island or place
aforesaid." By Article 6, subdivision 1, the order also applies
to " all British subjects, for the time being, within the Western
Pacific Islands, whether resident there or not." By Article 22
it is provided that —
Subject to the other provisions of this order. Her Majesty's criminal and civil
jurisdiction exercisable in the Western Pacific Islands shall, as far as circumstances
admit, be exercised on the principles of and in conformity with the statute and
other law for the time being in force in and for England, and with the powers
vested in and according to the course of procedure and practice observed by and
before the courts of justice and justices of the peace in England, according to their
respective jurisdiction and authorities.
Then by s. 3 of the Foreign Jurisdiction Act of 1878 it is enacted
that —
(1.) It shall be lawful for Her Majesty the Queen-in-Council, if it seems fit,
from time to time, by order, to direct that all or any of the enactments described
in the first schedule to this Act, or any enactments for the time being in force
amending or substituted for the same, shall extend with or without any exceptions,
adaptations, or modifications in the order mentioned to any country or place to
which for the time being the Foreign Jurisdiction Ad, 1843 applies.
(2.) Thereupon those enactments shall operate as if that country or place were
one of Her Majesty's colonies, and as if Her Majesty-in-Council were the Legis-
lature of that colony.
It has been contended that this section enables Her Majesty
to make an Order-in-Council of a prospective character (as it is
called) giving effect not only to statutes in existence at the time
of promulgating the Order-in-Council, but to statutes that may
be thereafter passed. I am unable to construe the statute in that
way, and if the Fugitive Offenders Act of 1881 depends upon the
'prospective force of the Order-in-Council of 1879 (which was
Eeoina v.
MoMdrdo and-
Davibs.
Lilley C.J.
158 QUEENSLAND JUSTICE OF THE PEACE,
Eegina 0. passed by virtue of this 3rd section), upon subsequent legislation
McMCBDO AND '^ "^ ., j-i-i, r
Davies. I am of opinion that it has no force within the colony of Queens-
-. ... ' J land in respect of proceedings commenced within the Western
Pacific jurisdiction ; in other words, that the statute does not
authorise the appUcation of prospective legislation by Order-in-
Council. However, I think that in this case the jurisdiction
under the Fugitive Offenders Act of 1881 does not need the support
of the Order-in-Council of 1879. If it did, I should hold that that
support would fail, inasmuch as the language of the statute of
1878, and even the words of Article 15 of the Order-in-Council
of 1879, do not appear to me to bear a construction giving effect
to a statute to be thereafter passed unless a special Order-in-
Council should be issued after the passing of the substituted
statute. No Order-in-Council has been issued under s. 36 of the
Fugitive Offenders Act of 1881 applying it to this jurisdiction
of the High Commissioner. With regard to the Fugitive Offenders
Act of 1881, 1 rest my decision on such parts of it as do not require
the support of any Order-in-Council. It seems to me, neverthe-
less, that irrespective of this omission to issue an Order-in-Council
under s. 36, and irrespective of the Order-in-Council of 1879, the
Fugitive Offenders Act of 1881, or at least all such parts of it as do
not need for their operation the support of the alleged prospective
authority of the Order-in-Council of 1879, but rest simply upon
the force of the statute of 1881 itself, are in operation within
the Western Pacific Islands and within this colony. By s. 5
of the Foreign Jurisdiction Act of 1878 it is enacted that —
In any country or place out of Her Majesty's dominions, in or to which any of
Her Majesty's subjects are for the time being resident or resorting, and which is
not subject to any Government from whom Her Majesty might obtain power and
jurisidiction by treaty or any of the other means mentioned in The Foreign Juris-
diction Act, 1843, Her Majesty shall, by virtue of this Act, have power and juris-
diction over Her Majesty's subjects for the time being resident in or resorting to
that country or place, and the same shall be deemed power and jurisdiction had
by Her Majesty therein within The Foreign Jurisdiction Act, 1843.
Now, in my opinion, by the force of ss. 1 and 2 of the Foreign
Jurisdiction Act of 1843, and of the Order-in-Council of 1877,
and of ss. 3 and 5 of the Foreign Jurisdiction Act of 1878, Her
Majesty has within the jurisdiction of the High Commissioner for
the Pacific dominion within the meaning of the Fugitive Offenders
Act of 1881, and that the prisoners are fugitives from that part
of Her Majesty's dominions, and that there is jurisdiction to
arrest them within the colony of Queensland, and to return them
CRIMINAL REPORTS, 1860-1907.
159
to the jurisdiction of the High Commissioner upon the endorsed
warrant, if the instrument itself and its endorsement are in other
respects sufficient. By force of the Foreign Jurisdiction Acts, and
of the Orders-in-Counoil, there is as much of the "territorial"
element in this " dominion," " power," or " jurisdiction " as
is essential to uphold and exercise it. Upon the question of the
sufficiency of the warrant, it was first contended that it does not
disclose an offence within the meaning of the Fugitive Offenders
Act of 1881, s. 9, inasmuch as it does not appear on the
face of that warrant that the offence is punishable by im-
prisonment with hard labour for a term of twelve months
or more, or by any greater punishment. The warrant aptly
describes in appropriate and technical words the offence of
arson as it would be described in a similar instrument for
the arrest of an accused person in England or this colony.
Now by Article 27 of the Order-in-Council of 1877, the Court of
the High Commissioner by the Judicial Commissioner has power
to adjudge any such punishment as any court of criminal juris-
diction in England has. for the time being power to adjudge, and the
Court by the High Commissioner or a Deputy-Commissioner
has a Umited power of punishment for any term not exceeding
twelve months, with or without hard labour. The Fugitive
Offen^rs Act, s. 9, uses the words " That the Act shall apply
to offences punishable in the part of Her Majesty's dominions
in which it was committed by imprisonment with hard labour
for a term of twelve months or more or any greater punishment."
The warrant and the Order-in-Council, of which I am bound
to take judicial notice, therefore show that the offence is one
clearly within the terms of s. 9 of the Fugitive Offenders Act,
and on this point the warrant must be held to be sufficient.
In the English case of A.B., cited from the despatch of the 29th
June, 1883, the colonial law required to be proved, and the
distinction is that, in this case, it is judicially noticed. The
second point, on the sufficiency of the warrant, is that it is not
properly authenticated. Section 29 of the Fugitive Offenders Act
of 1881 declares that warrants shall be deemed duly authenticated
for the purposes of the Act if they are "authenticated in the
manner provided for the time being by law." By Article 32
of the Order-in-Council of 1879, judicial notice is, as I have said,
to be taken of that Order and of the principal Order of 1877,
and of all seals used thereunder, and, on reference to the schedule
to the Order of 1877, I find that a warrant in the first instance
Beoina v.
MoMUEDO AND
Davies.
Lilley C.J.
160
QUEENSLAND JUSTICE OF THE PEACE.
EEoraA V.
McMuBDO AND
Davies.
Lilley C J.
for the apprehension of an accused is to be issued by the Court
and to bear the seal. I must take judicial notice of the seal
(Article 32, Order of 1879) and presume that it was appended,
and the warrant issued by a person having lawful authority
to issue the same, and this determines the third and fourth point,
which latter was that the warrant was not issued by a person having
authority to issue the same. The fifth point raised was that the
endorsement does not show that the Governor was satisfied that
the warrant was issued by some person having lawful authority
to issue the same. This point is in some degree analogous to the
contention that where a statute authorises a justice of the peace
to endorse a warrant upon ;^roof on oath of the handwriting
of the justice granting the warrant, the endorsement itseK
should aver that such proof had been given. The contention here
being that the Governor should have averred that he was satisfied
as required by the Act. It has not been decided in England that
such averment is necessary, although no doubt if made it would
give a more assured warrant. This point was raised in England
in the case of Atkins v. Kilby, 11 A. and E. Ill, before Baron
Parke. Without deciding it the learned Baron said " he thought
that he must presume the magistrate to have acted rightly, and
on the requisite proof." I think I must do so here, and presume
that the Governor discharged his duty as required by the statute,
and that he was satisfied that the warrant had been duly issued
before he placed his endorsement upon it. The case for the
prisoners fails on aU points, and I remand them to custody under
the endorsed warrant.
The prisoners were remanded to custody accordingly.
Solicitors for prisoners : Hart, Mein, & Flower.
Solicitor for Crown : Grown Solicitor.
1884.
October.
[Full Cottet.]
CURRAN V. DOWZER AND OTHERS.
[2 Q.L.J. 45.— Note.— 35 Vic, No. 4, s. 28 is repealed. See now s. 448 of Criminal
Code.]
Brands Act (35 Vict. No. 4, s. 28).
The word '" wilfully " in the 28th section of The Brands Act means knowingly
and intentionally.
This was a motion to make absolute a rule nisi for a prohibition
granted by His Honour Mr. Justice Harding, at the instance
CRIMINAL REPORTS, 1860-1907.
161
of John Curran against James Dowzer, Jonathan Job, and
Frederick Edward Bull, JJ.P., and George William Roebuck,
Inspector of Brands for the Wide Bay District. Six head of
female cattle, the property of Curran, were found by the Inspector
of Brands bearing a brand which had been altered, a portion
of one brand having been imprinted over the corresponding
portion of a previously imprinted brand. The original brand
was the registered brand of Curran, and the brand as altered
represented a brand registered by Curran in the name of his son.
There was evidence that the brand had been altered by Curran,
but no improper motive was alleged. The bench, consisting of
Dowzer, Job, and BuU, convicted Curran of having wilfully
permitted his registered brand upon six head of female cattle
to be altered by the impressing of the registered brand of his son
upon the top of his brand, and fined him 5s. per head of stock so
branded, and £1 5s. 8d. costs. •
Drake moved the rule absolute, and the Attorney-General and
Real appeared to show cause on behalf of Roebuck.
The Attorney-General submitted that in order to sustain a
conviction under the 28th section of the Brands Act it was only
necessary to show that the brands had been altered by Curran ;
it was not necessary to show that the brands had been blotched
or defaced. There was evidence that Curran had imprinted
the second brand and the fact that only a portion of the second
brand had been used was evidence of an intention to alter the
original brand. The fact that no particular reason for the
alteration had been alleged was no answer to the charge.
Vickers v. Sellheim and Others {Q.L.J. Vol. I., p. 131) and
Gully V. Smith (12 Q.B.D. p. 121) were cited and commented on.
Real contended that the imprinting of the second brand upon
the first being a breach of the statute, it was not necessary to show
any motive for making the alteration. It would not be difficult,
if necessary, to suppose a reason for the alteration. For instance,
under the operation of the Insolvency Act a question of ownership
might be raised and in that case the state of the brand would
become of importance.
Drake submitted that the word " wilfuUy " imported some-
thing more than mere consciousness of performing an act ; some
wrong motive must be shown. One brand could not be placed
over another without making an alteration, and therefore, if the
act of knowingly placing one brand over another were an offence
L
CUBK\N V.
DOWZEK AND
OXHEBS.
162
QUEENSLAND JUSTICE OF THE PEACE.
CUBBAN V.
DOWZER AND
OlBEBB.
LiUey C.J.
under the 28th section, the word " wilfully " might be struck out
of the statute. No improper motive had been alleged, and there
was sufficient evidence to rebut any presumption of fraud. By
the 29th section of the Act, cattle bearing brands so altered
are liable to be impounded as unbranded stock ; it was therefore
against the interest of Curran to alter the brands on his own stock.
The act of placing one brand over another is an offence under
the 18th section of the Act as being a non-compliance with the
rules contained therein, and Curran should have been convicted,
if at all, of an offence under that section.
LiLLEY C.J. : We think that the rule must be discharged,
and I think with costs. The meaning of the 28th section is, to
my mind, perfectly clear. If a person wilfully alters a brand or
wilfully permits a brand to be altered, he incurs the penalty
provided by the statute for such misconduct. The word ''wil-
fiilly" in this section seems to me to mean knowingly and inten-
tionally. If a man knowingly alters a brand, intending that there
should be an alteration of it, then he has done that act wilfuUy and
cannot plead as an excuse for such conduct that he did not know
his act was prohibited by statute. The magistrates before whom
the case was brought had reasonable evidence from which they
could find that there was a wilful permission of alteration of a
brand within the meaning of the statute. It is such a question
as would be submitted to a jury ; and there being evidence from
which reasonable men would come to the conclusion that there
had been a wilful alteration of the brand, they were justified
in coming to that conclusion. The judgment must be upheld.
The rule, therefore, will be discharged with costs.
Solicitors for applicant : Wilson ds Wilson.
Solicitor for Roebuck : Crown Solicitor.
1884.
October.
[Full Court.]
REGINA V. HOPKINS AND EATON.
[2 Q.L.J. 47.— Note.— 40 Vic, No. 10, ss. 1 and 2 are repealed. See now s. 2 of
Oaths Act Amendment Act of 1884 (48 Vic, No. 19).]
Oaths Act Amendment Act of 1876 (40 Vic, No. 10), Declaration.
Under the Oaths Act Amendment Act of 1876 it is for the Judge to be satisfied
at the trial that the witness understands the nature of the declaration substantially.
This was a special case stated by Mr. Deputy-Judge Mansfield.
The facts, as stated, so far as they are material, were as follows : —
CRIMINAL REPORTS, 1860—1907.
163
The prisoners were tried at the Northern District Court,
Charters Towers, on July iOth, 1884, on a charge of horse-steahng.
Charhe, an aboriginal, was tendered as a witness for the Crown.
No interpreter was present, or available. Charlie knew enough
EngUsh to understand and speak easy words. The presiding
Judge was satisfied that an oath would have no binding efiect
on Char he's conscience. It was impossible to make Charlie
understand the actual words of. the declaration set out in s. 1
of the Oaths Act Amendment Act of 1876. In answer to the Judge,
CharHe said he had come to tell the truth, and no he, and that he
knew that if he did not tell the truth he would be sent to prison.
The Judge was quite satisfied that CharUe understood that he
bound himself to ,tell the truth, and that he was aware of the
penalties he would incur if he did not do so. The Judge being
then about to admit Charlie's evidence, GampbeU, prisoners' coun-
sel, objected to its admission on the ground that CharUe had
not taken a promise and declaration in the form stated in s. 1
of the Oaths Act Amendment Act of 1876, or to the Uke effect,
mutatis mutandis, as required by s. 1 of the said Act. The Judge
admitted Charlie's evidence. Both prisoners were convicted.
The questions for the opinion of the Court were : 1. Was
the Judge right in admitting CharUe's evidence ? 2. Were the
prisoners properly convicted ?
Power (Campbell with him) appeared for the prisoners. Feez
appeared for the Crown, in support of the conviction.
Power contended that the witness CharHe could only speak
easy words, and that no attempt was made to repeat the declara-
tion to him, or to get it into his head. That it would be a fair
interpretation of the case if CharUe could be prosecuted for perjury ;
and that the Judge appeared to have acted upon the principle
that he would take the evidence for what it was worth. Regina
V. Tommy and George, Queensland Law Reports, vol. 1, part 2,
■p. 14, was cited.
Campbell foUowed.
Feez was not called upon.
LiLLEY C.J. : In this case it appears that the presiding Judge
was satisfied of the first matter he had to determine— namely,
that an oath would have no binding effect on the conscience of
the witness, and further that it was impossible to make CharUe
understand the actual effect of the words of the declaration in s. 1
of the Oaths Act Amendment Act of 1876. But, in answer to
Regina v.
Hopkins and
Eaton.
Lillej C.J.
164
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
Hopkins and
Eaton.
Lilley C.J.
Harding J.
the Judge, Charlie said he had come to tell the truth, and no he.
That appears to me, to be in substance the ordinary witness' oath,
that he had come to speak the truth, the whole truth, and nothing
but the truth. But this declaration has added to the difficulties of
witnesses who do not understand the effect of an oath, by requiring
that they should know that they render themselves hable to the
penalties of wilful and corrupt perjury. In this case, I think,
substantially that, in popular language, the witness said that he
did, because he said that if he did not tell the truth he would be
sent to prison. But the Judge has certified something more in this
case. It is for the Judge, under this statute, to be satisfied at
the trial that the witness understands the nature of the declaration
substantially, the fair interpretation of the language ; and the
nature of the duty the Judge has to discharge has been determined
in the case of Begina r. Tommy and George, decided in this Court,
that the Judge has to determine as to the competency of the
witness. If there is an omission of duty on the part of the Judge,
the matter may be brought before this Court on a case reserved
and stated by the Judge himself ; but where the Judge dis-
charges his duty, he alone is to decide as to the competency
of the witness within the meaning of the Act. The Judge has
certified to us, and there is no reason to doubt that he was quite
satisfied of the state of CharHe's mind at the time, and that
Charlie understood and was aware of the penalties he would incur
if he did not tell the truth. Under these circumstances, I think
the Judge discharged his duty, the witness appeared to be com-
petent, the requirements of the statute were satisfied, and the
conviction must be affirmed.
Harding J. : The solemn declaration required to be adminis-
tered by the Oaths Act Amendment Act of 1876 is one of considerable
difficulty, and certainly, although the Act requires the witness to
solemnly promise, its administration is one of the most unsolemn
proceedings that the dignity of the court has to submit to.
Generally, having an ignorant black witness talking a species of
pigeon English, every word he says producing a disturbance in
the court. To my mind the proceeding is very unsatisfactory,
but being the law of the land, that law has to be administered.
In the administration of that law, as in other matters of detail, or,
so to speak, of administration, great latitude rests in the hands of
each Judge. Some Judge's minds are more technical than others ;
other Judges take larger and more general views, but by the
joining of such different minds together probably the true aim of
CRIMINAL REPORTS, 1860-1907.
165
the Act is obtained in the end. Bearing this in mind, and the
latitude allowed to each Judge, the question to be decided is.
Has the law been satisfied in that particular case ? In this case,
as I take it, there are, as Mr. Campbell mentioned, three detailed
steps required. First, that the presiding Judge is to be satisfied
that the taking of an oath will have no binding effect on the
conscience of the proposed instrument of evidence. In this case
it is definitely stated that the presiding Judge was satisfied that
an oath would have no binding effect on Charlie's conscience.
So that is the first step satisfied. The next step is that the pro-
posed instrument of evidence^ or witness, is to make a promise or
declaration in the form given in the Act, or to a like effect, mutatis
mutandis. I will read the words of the late Mr. Justice Lutwyche
in the case of Regina v. Tommy and George, Q.L.R., vol 1, part 2,
p. 18. " I think they were. The words, ' to the like effect,
mutatis mutandis,' in the first clause, clearly show that it is not
necessary that there should be a literal declaration by the witness
in the form given by the Act." Not necessary to be a Uteral
declaration. With that I agree. Here one of the difficulties
would greet a Judge of technical mind. Such a Judge would go
through the actual form simply as a form ; but going through
that would be of no use at aU, if the requirements of the statute
were not satisfied. Now, if it is to be a Uteral declaration, find
out first of all what a hteral declaration is. A solemn promise to
speak the truth ; that is what it amounts to. Secondly, that the
proposed witness makes the solemn promise or declaration with
the fuU knowledge that, if he does not speak the truth, I will
render myself Hable to the penalties of wilful and corrupt perjury.
That is a technical declaration. What is the Uteral ? I am not
going to tell what is false ; I am going to tell what is true, and I
am perfectly aware if I tell what is false and do not tell what is
true I shall be punished. That is the Uteral. In this case the
Judge says it was impossible to make CharUe understand the
words in the declaration ; that is to say, it was impossible to
make him understand them -as technicaUy placed. The Judge
goes on — " in answer to the Judge, CharUe said he had come to
ten the truth, and no Ue, and knew that if he did not teU the truth
he would be sent to prison." That is the Uteral. That actually
occurred. There you have the two steps — first, the satisfaction
of the Judge that an oath would have no binding effect on the
witness ; second, an actual compUance with the requirements of
the law— a literal compUance. Then the third requisition of
the law is that it shaU be the duty of the presiding Judge, before
Begina v.
Hopkins and
Eaton.
Harding J.
166
QUEENSLAND JUSTICE OF THE PEACE.
Begina v.
Hopkins and
Eaton.
Harding J.
taking the evidence of any such person, to satisfy himseK that he
clearly understands the meaning of such promise and declaration.
Did the Judge do that in this case ? In his statement of the case
he says that he was quite satisfied that CharUe bound himself to
tell the truth, and was aware of the penalties he would incur if
he did not do so. There are the three requirements ; each of
them to my mind was satisfied in this case, and, that being so, I
think the law has been complied with, and that the conviction
must be affirmed.
Solicitor for Crown : Crown Solicitor.
SoUcitors for prisoners : Macpherson ds Mishin.
1885.
March.
[Full Court.]
WILLIAMS V. BAIRD AND OTHERS.
[ 2 Q.L.J. 60.— Note.— 35 Vie., No. 4, s. 27 is repealed. See now s. 447 of Criminal
Code. As to bona fide claim of right, see now s. 22 of Criminal Code.]
TU Brands Act of 1872 (35 Vict. No. 4) sec. 27.
A hona fde claim of right of property is a good defence to a charge of illegally
branding under s. 27 of the Brands Act of 1872.
This was a motion to make absolute a rule nisi for a prohibition
granted by Mr. Justice Harding, at the instance of John WilUams,
against James Clark Baird, Edmund Bellord Power, John Davis,
and John Clunn, of Cooktown, JJ.P., and Dominick Brannighan,
of Hidden Valley, near Cooktown, selector. Brannighan claimed
to have lost a bull calf with its mother in a scrub whilst driving
them with a mob of cattle, on January 27, 1884. The calf was
then unbranded ; and he did not see it or the mother until the
middle of the following December, when he saw both in a mob of
Williams' cattle, and the calf had Williams' brand upon it, and
was earmarked. He took both to his yard, where WiUiams saw
them, but did not see the calf suckling Brannighan's cow, as it
was alleged by the latter to have done. Brannighan, in evidence,
swore that his calf was eight or nine months old ; on the other
hand, an employee of Williams, named Culver, swore that the
calf was the offspring of one of WiUiams' cows, and was twelve
months old at least. The opinion of the Inspector of Brands,
also, was that it was at least twelve months' old. Brannighan
could not say whether the calf was not branded on the 29th June,
CRIMINAL REPORTS, 1860—1907. 167
1884, though it had the appearance of having been branded about „ Williams v.
imi 1 ,-1 1 Baird AND Others
beptember. The bench, consisting of the above-named justices,
convicted Williams of illegally branding the calf with his registered
brand, not being its lawful owner, and fined him £10, in default a
month's imprisonment.
The rule was granted on the grounds —
1. That there was no evidence that the offence was com-
mitted within six months before information laid.
2. That there was no evidence that the branding was done or
permitted wilfully.
3. That the conviction was against the evidence. Court
dismissed first ground ; Brands Act Amendment Act of
1884 apphes in this case.
Eeal moved the rule absolute. He stated the facts. The calf
was seen only once by prosecutor before it was branded ; and a
cow of defendant's had mothered it throughout. He submitted
that the question was on the second ground : Is a bona fide claim
of right an answer to a prosecution under the 27th section of the
Brands Act ?
Harding J. : As in a larceny case.
Butledge A.G. (Lilley with him), shewed cause for the magis-
trates, and submitted that by the evidence of defendant, in
December, 1883, the calf was being mothered by his cow and was
two weeks old ; and that in August, 1884, she produced another
calf. That was improbable ; it was a question of the usual
period of gestation. He cited Curran v. Dowzer, Q.L.J. , vol. II.,
p. 45, as to intention. While there must be reasonable proof on
the part of the prosecution that there was a wilful branding, on
the other hand there must be such ground for a claim of bona fides
as would convince reasonable men that the calf was the property
of the brander.
Lilley C.J. : On the question of bona fides, the magistrates
are judges of the facts, like a jury.
Butledge A.O. : The magistrates clearly disbelieved defendant's
evidence.
Lilley followed, and submitted that the onus of proof lay on the
defendant ; and that the fact was determined by the justices.
Chvhb Q.C: [Drake with him) showed cause for the prosecutor,
Brannighan, and submitted that the fact, as to a colour of title,
was determined by the justices, who were the proper tribunal.
The Court would not review their decision on the fact.
168 QUEENSLAND JUSTICE OP THE PEACE.
Williams v. Lilley C.J. : They must determine not only that it was not
his property, and whether his claim was a good one, but that it
was made in good faith. His claim was decided to be wrong,
but did he make it in good faith ? Did they determine that ?
Beal, in reply, submitted that the justices decided that wilfully
branding was intentionally branding. Defendant did not get the
benefit of a consideration of the real state of the law — that a bona
fide claim of right was a good defence.
Lilley C.J. LiLLEy C.J. : If they did not admit that defence, it would be
a mis-trial. If the only evidence that they did not admit is, as a
proposition of law, that they decided against him, it is not suffi-
cient ground. The rule is discharged with costs. As to the law,
we are quite clear that a party charged with an offence under this
section (No. 27) of the Brands Act can set up the defence that he
branded an animal and assumed the right of property in that way
under the bona fide behef that it was his property; in other words,
that a bona fide claim of right of property is a defence against a
charge, much in the same way that it is in larceny. When a man
takes property, honestly beheving it to be his own, and it turns
out that it is not his, he is not answerable to the law for a criminal
prosecution.
SoHcitor for applicant : Chambers, Brisbane ; agent for Barnett,
Cooktown.
Solicitor for prosecutor — Thynne, Brisbane.
Solicitor for Justices : The Crown Solicitor.
[Full Couet.]
REGINA V. JUDGE.
[2 Q.I,.J. 61.]
1885. Information — Description of person murdered.
1' The information eiarged the prisoner with murder, and the child who was
Lilley C.J. alleged to have been murdered was described in the information as a certain male
Harding J. ^j^jj^ ^.j^^^^^ lately before born of the body of her the prisoner, and that the name of
the murdered child teas to Her Majesty's Attomey-Oenerai unknown. There was
evidence that the child was bom three months after the prisoner's marriage, and
Ihat the prisoner's husband was not the father of the child.
Hdd, that the child was sufficiently described in the information.
This was a special case stated by Mr. Justice Harding : —
CRIMINAL REPORTS, 1860—1907. 169
1. The prisoner was tried before me at the Criminal Sittings Begina v. Jddoe.
of this Honorable Court, holden at Rockhampton, on the 21st
day of April, 1885, on an information presented on the same day,
whereby she was charged as follows : — " That Annie Judge on
the fifteenth day of December, in the year of our Lord one thousand
«ight hundred and eighty-four, at Sandy Creek, in the Colony of
Queensland, feloniously, wilfully, and of her mahce aforethought
did kill and murder a certain male child then lately before born of
the body of her the said Annie Judge, whose name is to Her
Majesty's Attorney-General unknown."
2. So far as it is material for the consideration of the point
leserved in this case the evidence was as follows : —
Jane Brown deposed amongst other things as follows : — " On
the 15th of December last I saw the prisoner She
appeared to be greatly in the family way Mrs.
Whattshell fetched the prisoner's husband home
The prisoner's husband fetched a nurse from Clermont. Mrs.
Parsons was her name."
Mary Ann Parsons deposed amongst other things as follows : —
■" On Monday, 15th December last, her husband, Mr. Judge,
came for me. . . . She kept saying there was no baby.
She said ' how do you think it could be a baby and I only three
months married.' Soon after this her husband came home. He
spoke to her and asked her to tell what was the matter. I said
to her husband, ' don't be rash ; try if you can't coax her to tell
ail about it.' She said to her husband, ' I won't teU you, I'U tell
Mrs. Parsons.' I went in and said, ' now come tell me what
you have done with it.' She said, ' rise up the corner of the
mattress behind me and you will find it.' I raised up the corner
of the mattress and I saw the child lying on its face. It was a
male child. I picked it up. . . . When I took the child
out I asked, ' who is the father of it ? ' She said, ' I've been but
three months married.' She told me who the father was. She
did not name her husband. . . . The prisoner gave no name
to the child. I never heard that it had any name of its own."
William Fitzmorris deposed amongst other things : — " I saw
the prisoner's husband there."
3. At the conclusion of the case for the Crown, I called the
attention of the Attorney-General to the state of the evidence,
and he did not ask leave to amend.
4. In my summing up I told the jury that it was necessary
for the Crown to prove that the name of the male child was to Her
170 QUIENSLAND JUSTICE OF THE PEACE.
Beoina v. Jddge. Majesty's Attorney-General unknown, and that if they did not
find it was they must find a verdict of not guilty.
5. I reserved the point as to the sufficiency of the evidence to
support a conviction for the consideration of this Honorable
Court.
6. The jury found a verdict of guilty, and I passed a sentence
of death.
(Signed) Geobge R. Haeding, J.
5th May, 1885.
The question for the Court was whether the description of the
child alleged in the information to have been murdered, as of
name " to Her Majesty's Attorney-General unknown " was a
sufficient description.
The Attorney-General {A. Rutledge), and Real with him, for the
prosecution.
Mansfield for the prisoner.
The Attorney-General, in support of the conviction, submitted
that the evidence showed that the child had been lately born of the
body of Annie Judge, but had never been seen alive, and had
not acquired a name from Judge, or from anybody else, or the
reputation of such. He cited Reg. v. Bliss, 2 Moo. CO., 93 ;
and Reg. v. Willis, 1 Den. C.C., 80. In the latter the prisoner
was not a married woman ; here she was.
Lilley G.J. : There it was a bastard of no name. Here being
bom in wedlock, the question is does it acquire the name of the
husband ? Is a name more than a matter of reputation 1
Strictly speaking, if the child had been born in the house, and
handed about for a day, it would probably have the family name
at least, by reputation. It had not been baptised. Was there
proof of its legitimacy, properly received ? Ordinarily a parent's
evidence cannot be heard to bastardize his own offspring on grounds
of public morality and decency. Non-access cannot be sworn to.
Still there is no objection to a woman swearing that the child
is not that of her husband.
The Attorney-General : The declaration of Judge to the witness,
Parsons, is conclusive that the child was a bastard. There can
be no doubt the child had not obtained a name by reputation, as
it was killed almost upon birth. A name itself is acquired by
reputation — Luscombe v. Yates, 5 B. <& Aid., 544. The fact that
the child is accurately described so as to point to the identity of
it, as the victim of the crime beyond a doubt or question, fulfils
CEIMINAL EEPOETS, 1860—1907. 171
the requirements of the law ; and the child, having been strangled Eeoina v. Judoe.
almost at the instant of birth, had not acquired any name.
Real followed : The description was sufficient apart from
description of name unknown. Reg. v. Waters, 1 Den. G.C., 356.
All names are acquired by reputation. Bastards have a right
to neither parent's name. Ste'ph. Comm., Ed., '74, Vol. II., 299w.
This case is within the one in Denison ; and the child here was a
bastard. Here, first, the woman denied having a child ; second,
concealed the fact from her husband. These two circumstances
are stated as evidence of illegitimacy, in Morris v. Davies. There
was evidence for the jury of illegitimacy ; and nobody had
imputed the name of Judge. The description was therefore
sufficient to identify the subject of the crime.
Lilley C.J. : She imputed neither name, nor parentage to
Judge.
Mansfield : There is a fatal variance in the information if the
child was legitimate. The first part would then be sufficient —
" A certain male child then lately before born of the body of her
the said Annie Judge." Reg. v. Biss {rep. also 8 Gar. and P.,
773) ; Reg. v. Campbell, 1 Car. and K., 82, also cited. Reason-
able diligence must be used by Crown. Here they did not use
it. Reg. v. Willis, and Reg. v. Hogg, 2 Moo. and Rob., 380 ;
and R. v. Waters. The child was illegitimate ; they do not apply
then unless the child here is proved illegitimate. Neither husband
nor wife can be allowed here to prove non-access. In A. v. A.,
25 L.J. Gh., 136, the M.R. allowed the wife to be asked how long
she had known her husband before marriage ; on her answering
more than a year, he allowed no further question as to access. The
presumption here is in favour of legitimacy. There is no evidence
of concealment from husband more than from anybody else.
There is no evidence of illegitimacy to rebut the contrary pre-
sumpton. Immediately on birth, being her child, it should take
the name of Judge. Steph. Comm., Ed. '74, Vol. II., 299 n.
Lilley G.J. referred to Hargrave v. Hargrave, 2 Car. and K., 701.
Lilley C.J. gave judgment as follows : — In this case the IJiHey C.J.
information charged the prisoner with murder, and the child
who was alleged to have been murdered was described in the
information as "a certain male child then lately before born
of the body of her the said Annie Judge." If the information
had stopped there, she being a married woman, I think the law
must be taken to be that the child had acquired from the moment
172 QUEENSLAND JUSTICE OF THE PEACE.
Eeqina v. Judge of j^g birth, if a legitimate child, the reputation of her name.
LilieyC.J. That name would be Judge. I think it would be a sound practice,
which ought to be followed in the Crown Office, to describe the
child by the name of the married woman, if not baptised. In
other words, I think it is the law that a child born legitimately of
married people has the name of the presumed father. Under
these circumstances, if a child is born of a woman after her
marriage, it is presumed to be legitimate ; but that is a presump-
tion which may be rebutted ; and, I suppose, it was by reason of
the fact that in this case it was rebuttable that the Attorney-
General added these words that the name of the murdered child
" Is, to Her Majesty's Attorney-General, unknown." If our idea
of the law is correct that the child born to married persons bears
by reputation from the instant of its birth the name of the family
into which it is born, it would not be right on the part of the
Attorney-General to describe it as a child whose name to him
is unknown. I presume these words were put in because the
Attorney-General knew that the legitimacy of the child was
in question, or Hkely to be called in question. As the reputation
of the name of Judge, which would attach to the child under
ordinary circumstances as the child of a married woman, is
rebuttable, it seems to me that there was very cogent evidence
to go to the jury to show that the child was illegitimate, and
therefore was not entitled to the name of Judge, and by reputation
had not acquired the name, or right to go by that name. The
mother did in fact conceal the child, and then denied that the
child had been born, and wished to conceal the fact altogether
from her husband, and in the next place she stated to the married
woman in whom she was at last induced to place confidence, that
the child was the child of a person whose name was not that of the
husband. Assuming that she had her senses about her — and
there is no evidence that she had not — it is fair to believe that it
was an illegitimate child, whose name was to the Attorney-
General unknown ; because in law it is clear that an illegitimate
child has no right to the name of either its father or mother, unless
by reputation. That may arise by imputation very quickly, a
few moments after birth. If for ever so short a period of time
a child is called by the name of one or other of the parents, it is
sufficient. This child was murdered a few moments after birth ;
and there is no evidence that she, or anybody, gave any name
to it. It was murdered almost immediately after it was born.
I think the information is perfectly correct. It was a child whose
CRIMINAL REPOETS, 1860-1907.
173
name was to Her Majesty's Attorney- General unknown. The Begixa v. Jodqe.
jury found it was a child whose name was to him unknown, and Lilley C.J,
I think the conviction must be affirmed.
Haeding J. : The judgment of The Chief Justice, as far as it
touches upon the case, I fully concur in ; the trial took place
before me at Rockhampton. The prisoner was not defended ;
there was no help for it, as no counsel, or soUcitors, or anybody
who could possibly defend her was present ; a Judge under these
circumstances, has, if possible, a more careful duty to perform
than if counsel were preserit. I watched the case with a view
of saving and bringing out all points that I could see, which should
be brought out for the prisoner, and amongst others arose the
question as to the admissibility of the piece of evidence which
has been pointed to, and to the possibility of a variance having
arisen. There were two courses to take. To reject the evidence,
which I should have done and have always done where the
incUnation of my mind has been that it was not receivable. The
late Mr. Justice Pring, when at the bar, on one occasion where a
prisoner was on his trial for murder, strongly argued before me
that certain evidence should be received ; he argued, receive
the evidence and reserve a point if there is any doubt about its
admissibiUty. I held on the other hand, viz. : — I was satisfied,
that, if not receivable, it did not lay upon me to allow inadmissible
evidence to go to the jury, and-allow a prisoner to be convicted
on insufficient evidence and go through the torture of delay
and be afterwards discharged, on evidence which I considered
inadmissible. I follow the course, I beUeve, taken by all Judges
at the trial of a prisoner, to reject all evidence as to the inadmissi-
biUty of which I have no doubt myself. If my opinion is in
favour of the admissibility of the evidence, yet if, from my
knowledge of the law and the authorities, I see that behind that
opinion there is room for an arguable case, I consider it my
duty to reserve a case, however strong m.y opinion may be. I
took that course here. The other course was to direct the jury
that on the birth of the child it acquired the name of its parents
by law, and that that being so, the Attorney-General must have
known its name, and to have directed an acquittal. Being then
as now of the opinion that the information was sufficient, but yet
having then in my own mind's eye the series of authorities, perhaps
not in the accurate way in which they have been put at the bar to-
day, and knowing that the question was arguable, I thought
it well to reserve the point and having done so and the matter
Harding J.
174
QUEENSLAND JUSTICE OF THE PEACE.
Beoinau. Oddob. having been argued at length at the bar, I think the conviction
Harding J. must be upheld, and for the reasons stated by His Honor The
Chief Justice.
Mein J. Mein J. : I am of the same opinion. The Chief Justice has
so fully entered into the circumstances of the case and the law
that there is no need to further enter upon the question. I consider
that the law assumes that a child born in wedlock is the child of the
husband, and that it takes by reputation the name of the husband,
until proved to be illegitimate. In this case the question reaUy
turns upon the fact whether there Was sufficient evidence to go
to the jury to prove the child illegitimate. I think there was.
The concealment of birth by the mother from her husband and the
denial of having given birth to the child come within the case of
Hardgrave v. Hardgrave. I think, the mother having done that,
there was evidence to go to the jury as to the illegitimacy ; and
that as the child was killed immediately after birth it could not,
being illegitimate, by any possibility have acquired a name by
reputation. The Attorney-General described the child correctly
in the indictment.
Conviction affirmed.
Solicitor for Crown : Crown Solicitor.
1885.
21st July.
Lilley C.J.
[Ipswich Circtjit Cotjet.]
REGINA V. ALEX. DIXON.
[2 Q.L.J. 81. Note. — 29 Vic, No. 6, s. 65 is repealed. See now definition of
dwelling-house in s. 1 of Code. See R. v. Hamilton, 3 Q.L.J. 78, post.]
29 Vict., No. 6, s. 65 — Dwelling-house — Canvas.
Any enclosed structure wherein a man dwells for the time being is a dwelling-
house within the meaning of the Act.
In this case, the prisoner was charged with the larceny of a
watch and other articles, from the dwelHng house of the prosecutor.
The prosecutor was then and had been for about six months prior
to the date of the alleged offence, Uving in a tent which had four
sides, through one of which ingress and egress were effected by
lifting a flap which could be closed by tying down or otherwise
securing it. The tent was on prosecutor's own land.
CRIMINAL REPORTS, 1860-1907.
Power, Acting Crown Prosecutor, in opening, referred to the
point whether a tent was a dwelling house within the meaning of
the Act— 29 Vict., No. 6.
Lilley C.J., in summing-up, said : " a dwelUng house must be,
within the statute, the abode" for the time being of the owner of
the property stolen. There is no doubt that this is of canvas,
but it is not essential to the structure of the house that it should
be of any one material. It is material that it should be closed,
and that it be the place where a man dwells for the time being.
It may be of stone, brick, wood or mud ; and in some countries
even of paper. Very elegant houses in Japan, even whole cities,
are built of paper — papier mache. It appears to me that if a
man on his own land puts up a structure of canvas, and goes there
to eat, sleep, and dwell, it is essentially, under the statute, his
dwelling house."
175
Beoina v. Alex.
. DrxoN.
Lilley C.J.
[Pull Court.]
REGINA V. PIEREMONT.
[2 Q.L.J. 93.— Note.— Sec. 206 of 38 Vic, No. 5 is repealed. See now see. 521 (d)
of the Criminal Code to lilce eSeet. Case referred to in R. v. Duncan, 4 Q.L.J.
219, post, and R. v. Hamilton 9 Q.L.J. 251, post.]
Insolvency Act of 1874 (38 Vict., No. 5, s. 206) — Disposal of goods
other than in the ordinary way of trade.
A person disposes of goods other than in the ordinary way of his trade within
the meaning of s. 206 of the Insolvency Act, who puts them away under such
circumstances that he exhibits an intent, and that the jury are satisfied that he
puts them away beyond the reach of his creditors, under the statute.
Held also, that it is not necessary that a man should absolutely part with the
property, if he puts them beyond his power of control, or that of his trustee,
assuming that the disposition was not in the ordinary way of his trade.
This was a special case stated by Mr. Justice Mein.
The prisoner was adjudged insolvent on the 1st May, 1885, on his own petition,
which was presented at the District Registry in Insolvency at Townsville, on the
17th April, 1885, and was tried before me at the last Criminal Sittings of this
Court, held in Brisbane, on a charge of misdemeanour under s. 206 (15) of The
Insolvency Act of 1874, for having at Townsville on the 16th March, 1885, within
four months next before the presentation of his petition for adjudication, unlawfully
disposed of, otherwise than in the ordinary way of his trade, certain property of
his, consisting of 91 cases of tea and 25 boxes of tea, which he had obtained on
credit and had not paid for.
1885.
December.
176 QUEENSLAND JUSTICE OF THE PEACE.
Keoina v. The prisoner started in business as a produce merchant at Townsville, in the
PiKBEMONT. month of August, 1884, with a capital, according to his own statement, of £125.
On an examination before this Court in its Insolvency Jurisdiction which was^
put in evidence the prisoner admitted that he did not pay this capital into any
bank, and stated that he used it in purchasing goods for cash in Sydney. The
prisoner continued to carry on the business t)f a produce merchant at Townsville,
selling wholesale and retail, up to the time of the presentation of the petition.
In the month of December, 1884, he received from the firm of Ponder, Evans &
Co., of Sydney, tea merchants, £235 123. 5d. worth of tea, made up of 100 boxes,
8 quarter-chests, 4 three-quarter chests and 79 half-chests, which he had purchased
from them on credit, the purchase money being represented by a promissory
* note of the prisoner's in favor of that firm, which matured on the 17th of April,
1885, and has never been paid. The tea so received by the prisoner was bonded
by him in his own name in Townsville, and the whole of it, with the exception
of about ten half chests, still remained in bond in the prisoner's name, and unsold
at the time of his insolvency.
In the month of November, 1884, the prisoner was indebted to the Queensland
Mercantile and Agency Co., Ltd., of Brisbane, of which Mi. N. J. Howes is a
Director, in the sum of £250, on an open account. He incurred a further liability
to that company in December, also on an open account, to the extent of about
£80. On the 21st January, 1885, a promissory note of £266 Os. 4d.. made by him in
favor of that company was dishonored ; and at the beginning of March, 1885,
the total liability of the prisoner to the Q. M. and A. Co., Ltd., including his liability
in respect of the dishonored promissory note amounted to about £680.
On the 12th January, 1885, the prisoner wrote to Mr. Howes informing him that
money was " coming in very badly since the holidays," and requesting him to
renew £150 of the amount of the promissory note which would fall due to his
company on the 21st of that month. This request was not complied with, and on
the 21st January, the day on which the promissory note became due, the prisoner
sent an urgent telegram to Mr. Howes in these terms : — " Bill due to day short of
£150 wire credit." This further request was also not complied with, and the
promissory note, as already mentioned, was dishonored, and it has never since
been paid.
In the early part of February, 1885, the prisoner visited Sydney. Whilst he
was there he opened an account at a Bank in the fictitious name of Henry Harris,
and deposited to the credit of the account £607 7s. 5d. Upon his examination
before this Court, he stated that he drew the whole of this money out of the Bank ;
that he kept no books with reference to it, that it was a trust account, and that
he gave the name of Harris because he " did not want it to appear that he had an
account at Sydney." He also admitted that information with regard to this
account had been obtained by his trustee through a bank slip which the trustee
had found amongst his papers, and which he (the prisoner) did not know was in
Townsville.
During the same visit to Sydney the prisoner between the 7th and 12th of
February, bought from the firm of Ponder, Evans and Co., tea to the value of
£446 7s. Id. The tea so purchased was done up in packets of lib. each, in tins
of 51b. each, and in boxes of 101b. each. The lib. packets amounted in value
CRIMINAL REPORTS, 1860-1907. 177
to £380 13s. 4cl., and were marked by Ponder, Evans and Co. with a special brand, Beoina v.'
r T "ff H W" IW O W T
designed by the prisoner, which included the name of the prisoner and his address
as a produce merchant at Towusville. The whole of this tea was purchased on
credit, and the purchase money was represented by a promissory note of the
prisoners in favor of Ponder, Evans and Co. for £446 7s. Id. dated 5th March,
1885, and payable four months after date. The promissory note has not, nor has
any of the purchase money of the tea, ever been paid.
The prisoner on his examination before the Court alleged that he was induced
to purchase the second lot of tea upon the representations of a Mr. Howlett,
who is at present the trustee of his estate, and was at that time acting as the
agent in Queensland of Ponder, Evans and Co., that another firm in Townsville
was then selling similar tea. Mr. Howlett, however, positively denied that he
had ever made any such representations to the prisoner, and asserted that he
neither induced the prisoner to purchase the tea nor brought it under his notice
in any way ; that the prisoner had purchased the tea from Ponder, Evans and Co,
on his own motion, and after a personal examination and approval of the tea.
The prisoner, before the end of February, returned from Sydney to Townsville.
Whilst he was passing through Brisbane, he waited upon and had a conversation
with Mr. Howes. During this conversation, reference was made to the state of
the prisoner's account with the Q. M. and A. Co., Ltd., and Mr. Howes told the
prisoner that it was as large as his company would like it to be, and that they
would like it to be reduced. No reference was made to tea or any other goods,
nor was anything said about the prisoner sending to the Q. M. and A. Co., Ltd.,
any consignments.
The tea purchased in February was shipped by Ponder, Evans and Co. to the
prisoner in 91 cases containing the lib. packets and the 51b. tins, and in 25 boxes
containing lOlbs. each, on or about the 4th March, 1885, and was conveyed from
Sydney to Brisbane by the S.S. " Leura," was transhipped from the " Leura " to
the S.S. " Keilawarra " in Brisbane, and was conveyed by the " Keilawarra " to
Townsville. There was no direct evidence as to the date on which the " Keila-
warra " reached Townsville, but the insolvent stated in his examination before
the Court that in the ordinary course, the " Keilawarra " would have reached
Townsville about the 11th March.
On or about the 13th March, 1885, the Q. M. and A. Co., Ltd., received from
the prisoner a letter. This letter was not produced at the trial, and Mr. Howes
stated that neither he nor the clerks in his company's employment could find
it after a diligent search. Mr. Howes stated that the letter consisted of only a
few lines, and that in it the prisoner asked his company if they would make him
" advances over tea and other goods." In reply to this letter Mr. Howes, in the
name of his company, sent the following telegram, dated 13th March, 1885.
" Ship tea on consignment will place five hiindred your credit against over-
draft account reply if sending.''
The prisoner replied by telegram, dated 14th March, 1885, in the following
terms : —
" Goods will leave here Tuesday, sell to best advantage."
On the 16th March, 1885, the prisoner, without having examined or landed
M
178 QUEENSLAND JUSTICE OF THE PEACE,
Bbgina I). any of the tea that had arrived at Townsville in the " Keilawarra " consigned 66
' cases and 25 boxes of it to the Q.M. and A. Co., Ltd., and obtained from the agents
of that steamer at Townsville a shipping receipt or bill of lading which acknow-
ledged that the prisoner had shipped by the " Keilawarra " to Brisbane, 66 cases
tea and 25 boxes tea, consigned to the Q.M. and A. Co., Ltd., the freight thereof
from Townsville, amounting to £9 8s. lOd., being charged " on." On the same
day the prisoner sent the shipping receipt to Mr. Howes with a memorandum of
which the following is a copy : —
" Enclosed please find S/R. for 91 packages tea which please sell on my
account. The boxes are invoiced to me at 9d. per lb. and the pink packets
at Is. 4d., other packets at Is. 2d. in bond. More goods will follow next
week."
The tea so sent to the Q. M. and A. Co., Ltd., reached Brisbane in due oouise
and was placed by that company in bond in their name. They subsequently sold
a small parcel of it and the remainder continued in bond in their name, until the
month of June, 1885, when it was transferred to the trustee of the prisoner's
estate. The prisoner had not previously consigned any goods to the Q. M. and A.
Co., Ltd.
On the same 16th of March the prisoner caused the balance of the tea that
reached Townsville in the " Keilawarra," consisting of 25 cases, to be taken
from the " Keilawarra " to the S.S. " Ocean," by a lighter, and the cases so
placed on board of the " Ocean " were conveyed by that steamer to Sydney,
consigned to a firm there named Symonds, Howes and Co., of whom Mr. Symonds
was the prisoner's brother-in-law. No bill of lading of the tea so consigned to
Symonds, Howes and Co., was produced at the trial. It was, however, proved
that Symonds, Howes and Co., had received the tea ; but there was no evidence .
to show how that firm had disposed of it.
The prisoner on his examination before the Court stated that the tea so sent
by him to Symonds, Howes and Co., consisted of 15 cases, each containing 12 tins
of 51b.., and 10 cases each containing 80 packets, and that he sent it " for sale
by them and returns." The prisoner also admitted^that, when he sent the tea
to Symonds, Howes and Co., that firm held an unmatured P/N of his for
£135 lOs. 6d. which was afterwards dishonored. Mr. Howlet deposed that he
had made application to Symonds, Howes and Co., for the return of the tea but
they had refused to give it up and that he was suing them in Sydney for its value.
On his examination before the Court, the prisoner stated that he took with him
from Sydney in February samples of the tea that he had purchased from Ponder,
Evans and Co., and that he tried from that time up to the time he sent the tea
to Sydney to sell it, but that it was " rubbish badly packed and imsaleable,"
and that he " thought it would realize more in Sydney or Brisbane than in Towns-
ville, and that was why he sent it to Sydney." He at the same time admitted
that he had never sent any other consignment of goods to Sydney.
Mr. Howlett deposed that the prisoner told him, about the time when he con-
signed the tea to the Q. M. and A. Co., Ltd., and to Symonds, Howes and Co.,
that " trade in Townsville was never better than it was at that time."
Mr. Howlett also stated that, about a week or ten days before the 16th March,
CEIMINAL REPORTS, 1860-1907. 179
he had sold teas in Townsville, of the same description as those that the prisoner Begina u.
had purchased from Ponder, Evans and Co., and at the same prices as had been ieke^
charged to the prisoner.
The prisoner did not at any time inform Ponder, Evans and Co. of either of the
consignments by him to the Q.M. and A. Co., Ltd., and Symonds, Howes and Co.
At the conclusion of the evidence for the Crown, Mr. Lilley, counsel for the
prisoner, submitted that there was no case to go to the jury, and asked me to direct
the discharge of the prisoner. I refused to comply with his request, and the
prisoner was found " Guilty " by the jury.
After the verdict of the jury had been returned and recorded, Mr. Lilley
requested me to reserve the following questions of law for the consideration of
this Court : —
1. Was there any evidence as to disposal of the goods, or any of them, within
the meaning of the section ?
2. Was there any evidence that the defendant disposed of them otherwise
than in the ordinary way of trade ?
The Attorney-General, who prosecuted on behalf of the Crown, thereupon
subniitted that Mr. Lilley was too late in preferring his request, as the statute
required that the application of prisoner's counsel should be made " diiring the
trial," and argued that the trial had been concluded by the return of the jury's
verdict. I overruled the Attorney-General's objection and state this case in
consequence of the application by the prisoner's counsel. If such application
had not been made, I should not, in the exercise of my own discretion, have reserved
any question for the consideration of this Court, as I was, at the time, satisfied
that there was sufficient evidence to support the conviction.
I did not pass judgment on the conviction, but postponed such judgment until
the questions reserved by me had been decided by this Court, and committed the
prisoner to prison, and he now is in prison.
The question for the opinion of the court substantially is : —
Was there any evidence to support the conviction ?
Signed : —
Chakles Sttjam Mein, J.
Supreme Court, Brisbane,
28th November, 1885.
Real and Kinnaird Rose appeared for the Crown.
Lilley opposed the conviction and opened his case.
Lilley C.J., referring to the Attorney-General's objection to
Mr. Lilley' s request at the trial to reserve a case, said : I am of
opinion that a motion in arrest of judgment may be moved even
after sentence, so long as the proceedings are still going on, if the
prisoner has not been removed. During the trial it certainly
can be raised. The proper time is after the verdict is brought in.
He referred to Reg. v. Martin, 1 Den. G.C., 398, and 18 L.J., M.G.,
137. In the English Act the word is " may ; " here it is " shall."
Apart from this there is the common law right of the Judge to
180 QUEENSLAND JUSTICE OP THE PEACE.
Regina r. reserve a point for his brother Judges. We hold that the
PlEREMONT. /-I n 1 c -T
Attorney-Generals objection was lutile.
Lilley submitted that under the subsection, " disposal " means
that a man m.ust divest himself of some property in the goods ;
must lose it to himself and his creditors. If he joins them in
security to another, it is pawn ; if he consigns them the money
is his or his creditors. Had the prisoner's goods been sold by the
Q.M. & A. Co. at good prices, and the money held for his trustee,
what objection could there be to that ? Then there was no
evidence as to the ordinary way of trade by a commission agent
and produce merchant at Townsville. There may be abundant
cases of fraud, and abundant provisions against it, but if he does
not come within the particular section under which he is indicted,
there cannot be a conviction. He did not dispose of the goods: ;:
if the Q. M. & A. Co. might hold the goods consigned them by
him, or the money proceeds from their sale, that was pawning.
Disposing is selling.
Harding J. : " Dispose " is the highest word in the subsection ;
"big enough to include pawn " and " pledge."
Lilley : On the cases decided, dispose does not include pawning
and pledging. Beg. v. Bolus, 11 Cox C.C. 610 ; 23 L.T., N.S.,
339 ; Ex parte Brett ; In re Hodgson, 1 Ch.D., 151. Reg. v.
Thomas, 11 Cox C.C. 535.
Harding J. : Could he have got his goods back again ?
Lilley: Most decidedly; supposing Symonds, Howes. & Co.
had gone insolvent, he could have stopped them in transitu.
Lilley C.J. : But they were never taken on shore at Townsville.
They were shipped from Sydney and were then sent back to another
merchant in the same street in Sydney.
Lilley : He could have stopped them in transitu. Until they
came into the hands of Symonds, Howes & Co., he had not dis-
posed of them ; and directly they fell into their hands in Sydney,,
the disposal if complete, was complete outside the jurisdiction
of the Court.
Lilley C.J. : I do not think it matters under this statute where
the goods are that are disposed of ; if it was property he was-
trading with, or could trade with here.
Lilley cited Beg. v. Bandinty, 4 Fos. and Fin., 165.
Lilley C.J. : That was a conspiracy in Paris ; here it is a case
of bringing goods within the jurisdiction.
CRIMINAL REPORTS, 1860-1907. 181
lAlley : But he disposed of them in Sydney. He referred to Eeqina o.
1st subsection of the section (206).
lAlley G.J. : I think the word " dispose " is used here to avoid
the technical consideration of pawn or pledge.
Lilley cited Reg. v. Manser. Prisoner never disposed of the
goods. He consigned to the Q. M. & A. Co., to sell at the best
advantage, and to Symonds, Howes and Co., for sale and return.
They could not hold as security against his account current
with them. He cited Spalding v. Ruding, 6 Beav., 376. There
must be some divesting of interest in the insolvent. He could
at any time have brought action against Q. M. & A. Co. to recover
the goods ; and he could have had them back at any time, upon
paying charges, if any, upon them. They could not hold them to
satisfy the general account. Verivs v. Jewell, 4 Comp. 31 ;
Saddler and Others v. Whitmore, 5 Jur., O.S., 315 ; Gibson v.
Bray, 1 Mo., 519. Then, as to " the ordinary way of trade,"
there is no evidence of what is the ordinary way of trade of a
commission agent and produce merchant at Townsville.
Mein J. : There was some evidence.
Lilley G.J. : The Court will generally refuse to send back a
case reserved for amendment. Roscoe, p. 231, referred to.
Lilley : There is no evidence on the point. Prisoner on the
other hand would be doing probably the best thing in sending
his goods from the smaller to the larger market. The verdict
should be set aside.
Beal, in reply : The section applies to disposal of them in any
possible way. Part of these goods was sold. If sending alone
was not disposal, part were sent to auction and sold. In Ex parte
Brett, they were consigning merchants, and the question was
whether they sent goods to AustraUa in the ordinary course of
trade. In Reg. v. Thomas, Lush J., says, " You cannot say
that disposing of stock in trade by a bill of sale, is disposing of
it in the ordinary way of trade ; that must be by selUng over the
counter," p. 538. He sent the goods after he was specially told it
would be placed against his overdraft with the Q. M. & A. Co.
It cannot be the ordinary course of honest trade to ship goods to
Brisbane from Sydney and then on further to Townsville, for the
purpose of bringing them back again. It cannot be "in the
ordinary way of trade " to dispose of goods by way of fraudulent
preference. There is sufficient on the case to show that this
could not be " in the ordinary way of trade." He received
182 QUEENSLAND JUSTICE OF THE PEACE.
Regina v. ^jj^g goods ; had not paid for them ; sent some to Sydney where
' he had purchased them, and not to the person from whom he had
purchased them, for sale and return.
Harding J. : You have enough to show what was done ; but
not enough to show what should be done.
Lilley G.J. : The learned Judge will amend the case. You,
Mr. Real, may refer to the evidence ; and the Judge will check
you and put what you refer to into the case.
Real did so. He contended : Prisoner had hot paid for these
goods or any of them, and he had disposed of them in a way
which would amount to fraudulent preference ; that is, not the
ordinary course of trade.
Hearing adjourned ; the Judge to amend case.
The following amendment to the case was added : —
I DESIRE to amend the Case already submitted by me and filed on the 28th
November last, by the addition of the following Statements : —
At the trial of the prisoner, Mr. Howes gave the following, amongst other evi-
dence that I do not think it necessary to specially refer to.
On examination in chief by the Attorney General : —
" When a person in business sends goods to another for sale the seller places
" the proceeds, as a matter of course, to the credit of the person who
" sent the goods ; that is what is usually done in business unless there
" is a special arrangement to the contrary."
On cross-examination by Mr. Lilley : —
" I have had plenty other goods sent to me from the North in this way.
" It is quite an ordinary thing for a firm up North who have unsaleable
" goods to send them down to Brisbane for sale on consignment. We
" received the tea on consignment to sell to the best advantage. The
" proceeds of the sale were not sufficient to pay the charges, and we
" handed over the tea unsold to the Trustee. We offered the tea to
" travellers, and it was not a saleable line : most of it was packet teas."
On re-examination by the Attorney General : —
" I have not had plenty of goods sent to me by people who have gone insolvent
" B. month after they sent them. It is quite the ordinary thing for
" persons to send down goods to Brisbane for sale on consignment
■' within a month of becoming insolvent, if they think in their judgment
" it is the best thing that can be done with the goods. I don't say
"it is quite the ordinary thing for persons to send a large parcel of
" goods to one of their creditors, and go insolvent a month afterwards."
In my charge to the jury, I told them, with respect to the teas consigned by the
prisoner to Symonds, Howes & Co., and to the Queensland Mercantile and
Agency Co., Ltd., respectively that if they were satisfied that the teas so
consigned were, in either case, sent to the consignees in order that they might
CRIMINAL REPORTS, 1860-1907. 183
appropriate the goods, or the proceeds of their sale In liquidation of any subsisting Begina v.
liability of the prisoner's to them, either with a view to give such consignees a ^ iebe o .
preference over the other creditors of the prisoner, or so that the effect thereof
would be to defeat or delay the creditors of the prisoner, or to diminish the property
to be divided amongst his creditors, there would be a disposal by the prisoner
of the goods otherwise than in the ordinary way of trade ; and that, as by the
Insolvency law the transaction would be fraudulent, it would be held to have been
prima facie tainted with fraud, and the onus would be thrown upon the prisoner
of satisfying them that, in the particular transaction he had no intention to defraud.
Charles Stuart Mbin, J.
Supreme Court, Brisbane,
2nd December, 1885.
On Thursday, 3rd December, Lilley submitted that from the
cross-examination of Howes it might be in the ordinary course
of trade. There is no evidence that prisoner's act was not in the
ordinary course of trade ; that is his particular trade in Towns-
viUe. The Crown to prove it not so, should have put a witness
in the box to ask him if he were acquainted with the business of
a produce merchant and commission agent at Townsville, and so
forth. It was never shown that Howes had any particular
knowledge of business at all. The conviction should be quashed.
Lilley C.J. : This is a special case stated by the learned Judge Lilley C.J.
for the opinion of the Court, and the question, " was there any
evidence to support the conviction." The prisoner was indicted
under subsec. 15, of s. 206, of our Insolvency Act, for having within
four months next before the presentation of his petition for
adjudication, unlawfully disposed of, otherwise than in the
ordinary way of his trade, some portions of his property which he
had obtained on credit, and not paid for. Upon that indictment
of course the jury must be satisfied before they acquit, that he
had no intention to defraud. I have generally told a jury that
they must be satisfied that there must be some prima facie case
of fraud before they can deal with him safely under this particular
section ; the evidence must show some prima facie case of fraud
against him. If a man makes a disposition of his goods in such a
way as to be obviously out of the ordinary course of trade, the jury
may infer from that that he had some intent to defraud. The
question really in this case for our determination is, was there any
evidence that he disposed of them in any way other than the
ordinary way of trade. AU other matters under the subsection
are beyond dispute ; they were all proved. Now Mr. Lilley has
argued that, before a man can be charged with disposing of goods,
he must absolutely part with the property in them. I cannot
184 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. read the section in that way. I think if he puts away the goods
PlEBEMONT. *' , 1 ,
or part or them under such circumstances that he exhibits an
Lilley C.J. intent, that the jury are satisfied that he puts them away beyond
the reach of his creditors under the statute, he might be held
guilty of a misdemeanour under the subsection. It is not neces-
sary that a man should absolutely part with the property, if he
puts them beyond his power or control, or that of his trustee for
division of the proceeds amongst his creditors, assuming that the
disposition was not in the ordinary way of trade. The most
important cases that have been cited were Ex parte Brett, In re
Hodgson, and The Queen v. Thomas. In Ex parte Brett the
Judge made an observation to which I fully subscribe : You
cannot convict a man of one particular charge by showing some
fraud which estabhshes another charge. In other words, you
must prove the offence which you charge against a man, but the
same set of circumstances may point to two distinct offences,
and justify a conviction for one offence or the other. Take this
statute for instance. Here is this subsection : it is an oSence
to dispose of goods otherwise than in the ordinary way of trade,
with intent to defraud, of course. Under subsec. 2 of another
section, 208, if he has, intending to defraud his creditors, made
any gift, deUvery, transfer of, or charge on his property, he may
be found guilty of a misdemeanour under the act. Well, a de-
livery is a disposal of goods ; so the same circumstances which
point to an offence under the 15th subsection of s. 206, may point
to a conviction under subsec. 2, of s. 208. Or again, circum-
stances that justify a conviction under that subsec. 15, may justify
a conviction iinder subsec. 14, of s. 206, for carrying on business in
property obtained on credit under false pretences, and not paying
for the same. So if Ponder, Evans & Co., had prosecuted him
for that offence, he might on the same set of circumstances have
been found guilty for that. Looking at the particular offence
A\ith which he is charged, is there any reasonable evidence on
which the jury might hold him to be guilty ? The facts are in
very narrow compass ; within the four months previous to
presentation of his petition, he orders two large parcels of goods
from Ponder, Evan & Co., amounting in the aggregate to about
£600. A portion of them he sent to the Queensland Mercantile
& Agency Co. for disposal : they say on consignment for sale.
Another large consignment he sent to his brother-in-law in
Sydney, for disposal on consignment and return. Whether he
intended that, or not, is a question for the jury. At the time he
CRIMINAL REPORTS, 1860-1907. 185
delivered these goods to the firm of which his brother-in-law was a Reoina v.
1 ., . T 1 , r. ■. r , PlEKEMONT.
member, there was evidence that that firm were creditors of the — -
insolvent. There was also clear evidence that the Queensland LiHeyCJ.
Mercantile & Agency Go. were creditors of the insolvent at the
time they received the parcel of goods he transmitted to them.
The question for the jury really was, was that a fraudulent prefer-
ence ? The Judge rightly directed the jury that that was a
fraudulent preference, if there was an intent to prefer. If he
intended when giving them these goods to do so by way of prefer-
ence, there was undoubtedly a fraudulent preference, because
he was unable to meet his engagements at the time he dispatched
these goods to the Q. M. & A. Co., and to the firm which included
his brother-in-law. That was a fraudulent preference. Well,
now, it seems to me, it may be a mere question of law under
this subsec. 15, whether a man may make such a disposition that
the Judge may be able to say that in law it was a fraudulent
preference ; but generally speaking the cases that come under this
subsection must be questions of fact for the determination of the
jury. To dispose of otherwise than in the ordinary course of trade
involves a question of fraud ; goods must be disposed of fraudu-
lently, or the jury must fail to be satisfied that they were dis-
posed of with intent to defraud. Fraud is manifold and various,
and it would be impossible to lay down any absolute rule of
judgment for Judge or Court in respect of fraud, inasmuch as the
rule for the construction of such conduct must be as various as
fraud itseH. It is the same in respect of trade. It would be
impossible to say in each particular case, as a matter of fact,
and especially in a new industry, what is the ordinary course of
trade. There are cases in which no doubt it is obvious to ordinary
common sense that the conduct of the insolvent was not in the
ordinary course of trade. For instance, in that case of Reg. v.
Thomas, in which I was surprised to see, Mr. Justice Lush felt
it necessary to consult his colleague on circuit, in which a
grocer in the village of Cheadle executed in' favour of his
sister, to whom he was indebted, a bill of sale on the whole of his
property, within four months of his insolvency, it seemed to me
so obvious to ordinary sense that that could not be the ordinary
course of trade of a grocer, that the consultation between the
two Judges was unnecessary. It was a fraudulent preference, and
he might have consulted his colleague as to whether it was a
fraudulent preference at law, and his direction to the jury would
be perfectly comprehensible under the circumstances, because he
186
QUEENSLAND JUSTICE OF THE PEACE.
Beoina v.
PlEEEMONT.
Lilley C.J.
said " upon the evidence already given you have no alternative
but to find the prisoner guilty," therefore he rightly assumed
it to be a question of law. But as a general rule the question will
resolve itself into a question of fact, and the jury wiU decide
from their daily experience. I think His Honor's direction to
the jury was perfectly clear ; he regarded it as a fraudulent
preference, and he might reasonably take that view ; and the
jury might reasonably take that view. By delivering all these
goods to his brother's firm, or to the Q. M. & A. Co., to one or
other of them, he gave one creditor a fraudulent preference over
his other creditors. If a fraudulent transaction, then it could
not be in the ordinary way of trade. We have not yet reached
that stage of commercial morahty in which fraud becomes part
of the ordinary way of trade. We have no alternative but to
declare that the conviction must be affirmed. The prisoner must
be brought up before the Judge in the Criminal Court to receive
sentence at the usual hour to-morrow morning.
Conviction affirmed.
Sohcitor for the prosecution : The Grown Solicitor.
Solicitors for prisoner : Roberts & Roberts.
1886.
June.
Lilley C.J.
Harding J.
Mein J.
[Full Couet.]
THE QUEEN v. AH SAM.
[2 Q.L.J. 144. Note.— 29 Vic, No. 11, s. 15 Is repealed. See now s. 317 of Criminal
Code. Compare s. 196 of Code and see Criminal Practice Rules Order II.,
rule 2, Wilson & Graham's Code, p. 392.]
Offences against the Person Act of 1865 (29 Vict., No. 11, s. 15).
Under sec. 15 of The Offences against the Person Act of 1865, where a person
is charged with " shooting at " another with intent to do grievous bodily harm,
it is not necessary, in an information charging the offence, to insert the word
" at " although it is better that the pleader should follow the language of the
Statute creating the offence.
This was a special case stated by His Honor, Mr. Justice
Cooper as follows : —
The prisoner (a Chinaman) was tried before me at Townsville on the 28th April
last.
The information contained two counts, the first of which charged that he " one
Ah Tie feloniously and imlawfully did shoot " with intent to murder the said
CRIMINAL REPORTS, 1860-1907. 187
Ah Tie ; and the second charged that he " one Ah Tie feloniously and unlawfully The Queen v.
did shoot " with intent the said Ah Tie to do some grievous bodily harm.
Just before summing up to the jury I for the first time attentively considered
the form of these counts and pointed out to the Crown Prosecutor (Mr. Power)
that I was unable to find any section of the Offences against the Persons Act,
1865 which created the offence of " shooting " with intent, and that in my
opinion there was no such crime at Common Law.
Mr. Power then asked leave to amend the information by inserting the word
" at " after the word " shoot " in both counts, which I declined to give though
I would have done so if I had been of opinion that I had the power. I then asked
the Cro^vn Prosecutor what course he invited me to take. He pressed upon me
the fact that the information was a copy of one in constant use in the Crown Law
Office at Brisbane and urged me to let the case go to the jury. I agreed to do so
on the condition that I should state a Special Case on the prisoner's behalf.
I then summed up and the jury convicted the prisoner on the second count.
I sentenced him to five years' penal servitude, respited the execution of the sentence
and reserved for the opinion of the Full Court the questions, whether the conviction
is sustainable on the information as it stands, and whether I had the power to
amend it in the way suggested. *
Pope A. Cooper.
Power, Northern Crown Prosecutor, appeared for the Crown ;
lAlley, on behalf of the prisoner.
Lilley : This is an offence created by Statute, and the exact
words of the Statute should be followed. Section 15 of the
Offences against the Person Act had the words " shoot at." The
form of the ordinary information in Archbold, p. 710, 19th ed., was
" did by drawing a trigger," * * " discharge at and against."
Stephen's Law of Criminal Procedure, art. 244, p. 156, and Archbold,
p. 64, and Bex v. Compton, 7 Car. and P., 139 ; Craven's Case,
Beg. V. Buss, p. 14, referred to.
Power was not caUed upon. He stated that the Judge was
misinformed as to the form of indictment in question being
copied from the Crown Law Office at Brisbane ; that was not the
case. It was a form in use in the office at Bowen only.
Lilley C.J. : We must take cases decided by single Judges LilleyC.J.
as guides, not absolutely as binding authorities. They relate to
many very varied Statutes ; while we may hsten with respect to
the decisions of the very learned men who have presided over the
EngHsh Courts, we must use our own reason upon our own Statutes
here. In this matter we have no doubt that the information was
sufficient. It contained two counts ; as to the first it is not
necessary to make any observations, as the prisoner was not
convicted on it. But upon the second, on which a conviction
188 QUEENSLAND JUSTICE OP THE PEACE.
The Queen v. was had, I must make one or two observations, though at no
As^Sam. length. This second count charged that he " one Ah Tie felon-
Lilley C.J. iously and unlawfully did shoot " with intent the said Ah Tie to do
some grievous bodily harm. There is a slight inversion of ex-
pression there. It would have been better if it ran, that he.
Ah Sam, did feloniously and unlawfully shoot one Ah Tie, with
intent, &c. The Enghsh of it is plain enough in the sense that I
have last stated it, that he shot Ah Tie with intent to do Ah Tie
grievous bodily harm. Now the language of the Statute is
" shoot at." If the information had followed the Statute, it
would have been, that he at one Ah Tie feloniously and unlaw-
fully did shoot, with intent. In fact the difficulty has apparently
arisen in the mind of the learned Judge from the omission of the
word " at." The charge is, " shooting with intent," instead of
" shooting at with intent." The case has been reserved by the
Judge himself ; the counsel, or soUcitor, who defended the
, prisoner did not see any difficulty. I confess none arises in my
mind. I think, if a man is charged with shooting another with
intent, that is sufficient to mean that he shot at him. At the
same time I think it is better that the pleader should follow the
language of the Statute creating the offence ; that is a sound
general rule of pleading. But if there be an allegation of an offence
by prisoner to a certain intent, although the precise — the very —
words of the Statute be not employed, it is a sufficient allegation of
the offence against the prisoner. It is a rule as old as — older than
— Coke. He gave perhaps the aptest expression to it. " Pleading
is the language of the law." But that language is not necessarily
ipsissima verba of the Statute creating an offence. If the informa-
tion be in English, and contain the precise allegation of the offence
of which the prisoner is to be tried, that is sufficient ; and this
information seems to have contained that precise allegation of- the
offence on which the prisoner was tried. I think the conviction
should be confirmed.
Harding J. Harding and Mein JJ. concurred.
Mein J.
SoHcitor for Crown : The Crown Solicitor, Brisbane.
SoUcitor for prisoner : Bernays, agent for E. A. Milford, Cairns.
CKIMINAL EEPOETS, 1860—1907.
189,
[Full Coubt.]
REGINA V. HINCKLEY.
[2 Q.L.J. 182. — Note. — Sec. 48 of Offences Against the Person Act Is repealed.
See now ss. 214, 215 of Criminal Code. See R. v. Camm, 1 Q.L.J. 136, ante
p. 138.]
The prisoner was indicted under s. 48 of the Offences Against
the Person Act of 1865, and tried before The Chief Justice and a
jury at the November Criminal Sittings at Brisbane.
On the question of age, a married sister's evidence was the
only available evidence of the date of the child's birth. She
deposed to that event occurring either the 12th or the 20th of
September, 1879 ; and that she was at home when her httle sister
was born.
Lilley, for the defence, raised the point that this was insufficient
evidence ; and cited the case of Rex v. Wedge, 5 C. & P., 298 ;
Archbold's Criminal Pleading and Evidence, 20th ed., 815.
Lilley C.J. : If it had been a question of a day or so, as in
that case, I should require something more ; but there is evidence
here to go to the jury, as to the age of the child. There are
three years to spare here. The sister does not swear to the day,
but she says she was in the house at the time of her sister's birth.
It is a matter for the jury.
SoUcitor for prosecution : The Crown Solicitor.
SoUcitors for prisoner : Chambers, Bruce, and McNab.
1886.
November.
[Full Court.]
REG. V. KOGHIE (a Malay).
[2 Q.L.J. 187. — Kote. — Sec. 49 ol Criminal Practice Act of 1865 is repealed. See
now ss. 668, 669, and 670 of Criminal Code.]
Practice — Oaths Act Amendment Act of 1884, s. 2.
A Mahommedan witness said he would be sworn on the Koran, a copy of which
could not be obtained, and a form of affirmation was administered instead.
Held, that the witness's evidence was not receivable upon such affirmation,
but only on the oath upon the Koran.
Special case stated by the Judge of the Northern District
Court, under s. 49 of The Criminal Practice Act of 1865, as follows :
1887.
February.
190 QUEENSLAND JUSTICE OF THE PEACE.
Bbq. u. KoGHiB The prisoner was tried before me at the Criminal Sittings of the Northern District
Court holden at Maokay on the 1st day of December, 1886, on a charge of unlaw-
fully wounding one Saradim, a Mahommedan.
The prisoner was undefended and did not understand English.
Charles de Harte, who had had considerable experience as interpreter in courts
in Java, and who is a cultivated and intelligent man, was sworn as interpreter.
Upon Saradim getting into the witness box, he was asked by the interpreter
how he would be sworn and he replied " On the Koran."
I directed the proper officer to swear the witness on the Koran.
The Registrar then informed me that there was no Koran in Court, and after
inquiry I ascertained that none could be procured.
The interpreter informed me there was a form of affirmation which was some-
times used by Mahommedans in lieu of the oath on the Koran, but that such affirma-
tion was not as binding as the oath, it not being considered as solemn a proceeding
by the Mahommedans.
Upon this I intimated to the Crown Prosecutor that I could not receive the
evidence of Saradim unless under seal of an oath on the Koran.
The Crown Prosecutor thereupon pressed me to allow the witness to affirm
and submitted that section 2 of The Oaths Act Amendm.Ritt Act of 1884 provided
for this position as the words " the nature of an oath " therein must be read as
" the nature of an oath on the Bible."
I was informed that in the Police Court evidence by Mahommedan witnesses
was invariably received upon affirmation, and also that without the evidence of
Saradim the Crown would be unable to proceed, and that an adjournment would be
inconvenient.
After hearing the Crown Prosecutor I said that in my opinion section 2 did not
apply as the witness neither objected to take an oath nor was incapable of compre-
hending the nature of an oath, nor was I satisfied that an oath would have no
binding effect on his conscience within the meaning of that section.
Upon the whole, however, having in view the practise of the Police Court, I
deemed it advisable to get an authoritative exposition of the law and accordingly
admitted the evidence upon affirmation and reserved the point for the considera-
tion of the Full Court.
The prisoner was convicted and sentenced to 12 months' imprisonment with
hard labour.
I respited execution of the judgment and committed the prisoner to prison by
virtue of section 48 of The Criminal Practice Act of 1865.
The questions for the consideration of the Full Court are —
1. Was the evidence of Saradim receivable otherwise than upon oath on the
Koran ?
2. What order does the Full Court see fit to make ?
A. B. Noel,
Judge N.D. Court.
Southport, Jan. 18, 1887.
Power appeared for the Crown. Prisoner was not represented.
CEIMINAL REPORTS, 1860-1907. 191
LiLLEY C.J. : Here the man said that he would be sworn on ^^°- «• Koohib.
the Koran. That was a binding oath on his conscience ; it Lilley C.J.
as obhgatory on him. Evidence was admitted against the
prisoner which ought not to have been admitted ; and it was the
only evidence against him. It is clear the prosecutor ought
to have been sworn on the Koran ; the oath should have been
administered to him which he declared would be binding upon
his conscience. The order, under the 49th section of the Criminal
Practice Act, will be — judgment to be avoided and the prisoner
to be discharged ; this order to be entered on the record.
Solicitor for the Crown : Gill, Crown SoUcitor, Brisbane.
[Full Court.]
SWANWICK V. MILLS.
[3 Q.L.J. 12.— Note.— 29 Vic, No. 6, s. 107, is repealed. See now s. 135 of Criminal
Code to like effect.]
The Larceny Act of 1865 (29 Vict., No. 6), s. 107. 1887.
April.
An advertisement appeared in The Telegraph newspaper, of which the appellant
was the printer, in these words : — " Lost, from 46 Charlotte Street, black and Lilley G.J.
tan terrier pup. Finder handsomely rewarded ; no questions asked," contrary to Mein J
the provisions of s. 107 of 29 Vic, No. 6.
HM, that the words " Lost a black and tan terrier pup " amounted to prima
facie evidence against the appellant that a dog had been lost.
Hdd also, that an action will lie against both the printer and publisher of an
advertisement, within the meaning of the said section, and although the printer
and the publisher be one and the same person, he commits two separate offences
by printing and publishing such an advertisement.
This was an action tried before The Hon. The Chief Justice
at the March Civil Sittings in Brisbane ; and was brought by
plaintiff against defendant as the printer of The Telegraph news-
paper, under the provisions of the Larceny Act of 1865, s. 107,
for printing in the issue of that paper on August 6th, 1886, the
following advertisement : —
"Lost, from 46 Charlotte Street, black and tan terrier pup.
Finder handsomely rewarded ; no questions asked." |a^
On the hearing, The Chief Justice had directed a verdict for
plaintiff ; and judgment for £50 and costs had been entered
accordingly.
His Honor held that proof of actual loss or steaHng of the dog
was not necessary on the part of the plaintiff.
192
QUEENSLAND JUSTICE OF, THE PEACE.
swanwigk v.
Mills.
Harding J.
Power, Byrnes with him, on behalf of the appellant, the defend-
ant below, now moved for a judgment of non-suit ; that the
judgment for plaintiff for £50 be set aside with costs ; or that
defendant might be at liberty to plead the judgment recovered in a
previous action against him as publisher of The Telegraph. He
submitted that there was no offence under s. 107 of the Larceny
Act, which is a penal clause, unless there was proof of loss or
stealing of the property. If there was, it was not framed to catch,
both printer and publisher for one offence.
Harding J. referred to Cripps v. Burden, 2 Cowp., 640.
Byrnes followed. The section compelled the construction
that there must be evidence of a losing or steahng ; the advertise-
ment must be in respect of property lost or stolen. The pup
may have been lost or not ; The Telegraph did not, by admitting
it and pubUshing it in their columns, teU the world at large that
that advertisement was true.
Lilley, King with him, for respondent, the plaintiff below, were
not called upon.
Harding J., in delivering judgment, said : This is an appeal
from a judgment in an action tried by His Honor The Chief
Justice, the plaintiff being F. ff. Swanwick, and the defendant
C. Mills. In that action the plaintiff stated that on the 6th of
August, 1886, a certain advertisement in these words,
"Lost, from 46 Charlotte Street, black and tan terrier pup.
Finder handsomely rewarded; no questions asked,"
appeared in The Telegraph, of which the defendant was printer.
His Honor gave judgment for the plaintiff. The action was
brought under s. 107 of the Larceny Act, which enacts that: —
"Whosoever shall publicly advertise a reward for the return
of any property whatsoever which shall have been stolen or lost,
and shall in such advertisement use any words purporting that
no questions wiU be asked, or shall make use of any words in any
public advertisement purporting that a reward will be given
or paid for any property which shall have been stolen or lost,
without seizing or making any inquiry after the person producing
such property, or shall promise or offer in any such public
advertisement to return to any pawnbroker or other person
who may have bought or advanced money by way of loan upon
any property stolen or lost the money so paid or advanced,
or any other sum of money or reward for the return of such
property, or shall print or publish any such advertisement,
shall forfeit the sum of £50 for every such offence to any person
who will sue for the same by action of debt, to be recovered with
full costs of suit."
CRIMINAL REPORTS, 1860-1907. 19^
His Honor held that it was unnecessary to prove, in order to ^MiLtf "
support the claim, that a dog had been lost or stolen. Whether or
no it was necessary to construe the statute to that extent, I do not
consider it was necessary in order to support the present action.
Although possibly and very probably His Honor's ruling was
correct, my decision turns upon these circumstances : — In proof
of the plaintifE's case the advertisement was put in, which states
as foUows, — Lost, * * * black and tan terrier pup. That
having been put in as published by the defendant amounts in
my mind to prima facie evidence against defendant in the nature
of an admission by him that such a dog had been lost, and at all
events supported the action until the contrary was proved,
In other words, the onus of proof was shifted from the plaintiff
to the defendant, and it lay upon the defendant to prove that such
a dog had not been lost. His Honor accordingly held that a dog
had been lost ; and in my opinion that was sufficient to support
the action.
Then it has also been contended by the defendant that an action
had been brought on the same advertisement by the same plaintiff
for a penalty under the same section in respect of the publica-
tion of this advertisement. The defendant says, in answer to
that, we have already suffered judgment against us for the
pubhcation ; you cannot now sue us for the printing. That
depends on the construction of the latter part of the section. I
have read " or shall print or publish : " — in order to support the
defendant's contention that " or " must be changed to- the word
" and," and the section must read " print and publish." I think
that " or " makes the section disjunctive ; the words " print or
publish " mean two different functions, and that whether the
paper is printed and pubhshed by the same person, or printed
by one and pubhshed by another, makes no difference. The
man who prints it, whether he be the same or not as the pubhsher,
is forbidden to print the advertisement ; and the man who pub-
lishes, whether he is one and the same or not as the printer,
commits a separate offence in pubhshing it. I consider that the
first is no bar to the second. On the whole, I think the judgment
must be supported with the usual result, that defendant must
pay costs.
Mein J. : I am also of opinion that this appeal should be Mein J.
refused with costs. It appears to me that the last portion of the
section was framed in the interests of pubHc morahty ; and that
any person, who either prints or pubUshes an advertisement
194 QUEENSLAND JUSTICE OP THE PEACE.
SwANwicK V. professing to offer a reward for stolen property, with the condition
' attached that no questions will be asked, should be Uable to the
Mein J. penalty imposed with costs. Printing and publishing are not
contemporaneous acts. First printing takes place ; then publish-
ing, after the lapse of an interval of time. As pointed out by
The Chief Justice and conceded by counsel for the appellant,
printer and publisher are not one and the same person ; and it
was conceded that, where not identical, each would be liable
to a separate penalty. That admission, I think, puts the appellant
out of court. If the law says a man shall not do a certain thing,
and, when he does, shall be liable to a penalty, and that man
goes for and does an additional thing, which is forbidden, he
becomes liable to a separate penalty. If, after printing, he goes
on and pubhshes, he is liable to the full penalty under the statute.
On that I think the appellant fails. On the first point, it is said
that the onus is thrown on the plaintiff of showing that the article
advertised was in fact lost or stolen. In this case the appellant
has printed a pubhc advertisement in which it is stated as a fact
that a certain dog has been lost, and that a reward will be given
for its return, and " no questions asked." If we were to hold
that it was necessary for the person who sues for the penalty
in all such cases to prove the fact which has been admitted by
the advertiser, we would in most instances make this Act a dead
letter. The object of the Legislature is that a person who makes
admissions is estopped from denying the fact in an action of this
sort. It is a prima facie admission on his part of the statement
made. If he had pleaded that there was no loss of an animal from
46, Charlotte Street, I am inclined to think that, if he had proved
that in evidence, plaintiff would have been out of court. But
there was no plea nor evidence of the kind in this case ; and, as in
all other cases, the appellant is estopped by his own admissions.
I think he has failed in his appeal.
Lilley C.J. LiLLEY C.J. said : It is hardly necessary perhaps for me to
deliver a judgment at any length on the matter, as I agree entirely
with the judgment that the motion must be dismissed with costs.
I adhere to my opinion that, where an advertisement of this kind
is inserted in a pubUc print, stating that an animal has been lost
or stolen, — I here differ from my brother Mein — it would be no
answer, even by way of plea, that no animal had been lost or
stolen. I think a defendant is precluded, as against an informer,
by his own statement that an animal is lost or stolen. That is my
opinion ; I consider it is an absolute estoppel. As to the remain-
CEIMINAL RBPOETS, 1860—1907. 195
der of the judgment, I feel it is perfectly clear that the poUcy of ^^mIl™ "'
the latter part of the statute is, as pointed out by my brother
Mein, to stop persons from encouraging others to publish these LUley u.J.
advertisements, armouncing that they are willing to compound a
felony. To throw upon the informer the onus of proof would be a
great and unnecessary demand, which he would generally be
unable to satisfy. There is no name of the person who, in this
instance has lost the animal. How is an informer to prove the
loss under these circumstances ? There is generally only the
advertisement — nothing but that — that an animal has been lost
or stolen, and that, if the person having it will take it to a particular
place, no questions will be asked. The statute, it seems to me,
is directed against a breach of duty — the immoraUty of printing
or pubUshing an advertisement that a person is wilUng to com-
pound a felony. It is directed also to the repression of anything
that will prevent the discovery, conviction, and punishment of a
person who has committed a felony. I agree with my learned
brothers, except in that expression of opinion of my brother
Mein that — of course I express only my individual opinion — it
would be a defence to say the dog had not been lost or stolen.
The question is still open to an enterprising pleader who cares to
try it.
SoHcitors for appellant : Chambers, Bruce, and McNab.
SoHcitor for respondent : Winter.
[Maeyboeough Ciecuit Couet.]
THE QUEEN v. HAMILTON.
[3 Q.L.J. 78.— Note.— See deflnition o! " dwelling-house " in see. 1 of Criminal Code.]
Criminal law — Arson — House — Injuries to Property Act of 1865 1888.
(29 Vict., No. 5), s. 3. mhjiprii.
A tent of canvas occupied for the time being af3 a dwelling s a house within Lilley G.J.
the meaning of the statute, 29 Vict., No. 3, s. 3.
The Queen v. Dixon, 2 Q.L.J. 81, followed.
The prisoner was tried at the Maryborough Circuit Court on 26th
April, 1888, upon an information under s. 3 of 29 Vic, No. 3, for
feloniously, unlawfully and maliciously setting fire to a dwelling-
house.
196
Thk Qceen v.
Hamilton.
LiUey C J.
QUEENSLAND JUSTICE OF THE PEACE.
Chubb Q.G., for the prosecution, opened that it would be shown
in evidence that the dwelKng-house in question was an ordinary
canvas tent, occupied and used by its owner as a dweUing, and
submitted, on the authority of The Queen v. Dixon, 2 Q.L.J. 81,
that such a structure was a house within the meaning of the
statute. Evidence having been adduced establishing these facts,
LiLLEY C.J., in summing up, directed the jury that a tent so
occupied and used, was a house, within the meaning of the section.
1888.
Jut. e.
Lilley C.J.
Harding J.
Meiii J.
[Full Court.]
REGINA V. ABRAHAM STREET, THE YOUNGER.
[3 Q.L.J. 88.— Note. — Criminal Practice Act of 1865 is repealed. See now s. 668 of
Criminal Code. As to joinder ol charges in information, see s. 568 of Criminal
Code. As to stealing as a clerk or servant, see s. 398 VI. of Criminal Code.]
Embezzlement — Proof of status as clerk — Admissibility of a proof
of debt sworn to by prisoner subsequent to date of embezzlement
— Admissibility of a power of attorney dated five months after
embezzlement.
One S., being in the employ of B. and Co., was charged with three several!
embezzlements, on 15th March, 3rd June, and 12th July. At the trial three
proofs of debt were tendered, dated lith April, 21st May, and 26th July, sworn to-
by S. as the clerk of B. and Co.
The proof of 26th July was objected to by counsel for the prisoner, but admitted.
Counsel for the prisoner tendered a power of attorney given by B. and Co.
to the prisoner, dated 16th December in the same year. This was rejected.
On the admissibility of these two documents being reserved for the consideratioa
of the Full Court,
Held, that averments made by a man at not too remote a period from the date
of the transactions impeached may be given in evidence against him, and that
the proof of debt of 26th July was therefore rightly admitted.
That the power of attorney, as being too remote, was properly rejected.
Tbat these proofs of debt constituted a chain of evidence extending over the
period within which the embezzlements were charged to have been committed
and that in the one objected to S. swore to transactions by the firm during the'
same period.
Conviction affirmed.
Case stated for the consideration of the Judges of the Supreme
Court by Mr. Justice Mein, pursuant to the provisions of The
Criminal Practice Act of 1865, as follows : —
CEIMINA.L REPORTS, 1860—1907. 197
Abraham Stueet,
THE yOHNGEB.
The prisoner was tried before me on the 31st May and the j^^l^^f™^,
1st June, 1888, at the present Criminal Sittings of this Court
in Brisbane, on an information containing three counts, whereby
he was charged with having (1) on the 15th March, 1886, embezzled
£60 as clerk to Barron Lewis Barnett and another, (2) on the 3rd
June, 1886, embezzled £330 as clerk to the same persons, and
(3) on the 12th July, 1886, embezzled £120 as clerk to the same
persons. The jury found him guilty of the charges contained
in the first and third counts, and not guilty of the charge con-
tained in the second count of the information.
The prisoner, several years ago, entered the service of Emanuel
Barnett and Barron Lewis Barnett, who traded as merchants
in Brisbane under the firm of E. Barnett & Co., and remained
continuously in their service up to and throughout the year 1886.
During the whole of that year he' held the position of confidential
clerk to the firm, and received for his services a salary of £300 per
annum, paid by monthly instalments. Mr. Emanuel Barnett
lived in England, and Mr. B. L. Barnett, the partner resident
here, had the management and control of the business in Queens-
land, and the prisoner was " under his orders." The prisoner's
duties, prior to May, 1886, were to keep the cash-book, to attend
to all the banking accounts, to receive accounts when paid, to
superintend all the clerical work in the counting-house, and to
exercise a general -superintendence and management over the
secured customers of the firm. The cash-box was kept by
Mr. B. L. Barnett up to May, 1886. WhUst it was so kept it
was the duty of the prisoner, when' he received any cash or
cheque on behalf of the firm, to at once credit in the cash-book
the customer who paid the cash or cheque with the amount so
paid. It was then his duty to hand over to Mr. B. L. Barnett
the identical cash or cheque so paid and credited. In May,
1886, Mr. B. L. Barnett ceased to keep the cash-box, and the
prisoner was entrusted with the duty of keeping it and the firm's
cash. Thereafter it was the prisoner's duty, after crediting
customers in the cash-book with the cash or cheques paid by them,
to pay all cheques and large amounts of cash to the credit of the
firm of E. Barnett & Co. with their bankers.
The prisoner, on the 15th March, 1886, received on behalf of
E. Barnett & Co. from one of their secured customers a cheque
for £60, and, contrary to his duty, cashed the cheque at the bank
on which it was drawn, and appropriated the proceeds to his own
Tise, without either crediting the customer or debiting himself
with the amount in the cash-book, or in any of the other books
of the firm.
On the 12th July, 1886, the prisoner received from the same
secured customer, on behalf of E. Barnett & Co., another cheque
for £120, and, contrary to his duty, caused such cheque to be
cashed at the bank on which it was drawn, and appropriated the
proceeds to his own use, without either crediting the customer
or debiting himself with the amount in the cash-book, or in any
of the other books of the firm.
198 QUEiENSLAND JUSTICE OF THE PEACE
Beginai). It is unnecessary to refer to the moneys mentioned in the
Abraham Stkeet, gegon^ count of the information, as the prisoner, as abeady
THKTO0NGEE. gj.g^(.g^^ ^^^ acqulttcd of the charge therein contained.
The prisoner's main defence to the whole information was
that he was not a clerk within the meaning of the statute, but
merely the financial agent of E. Barnett & Co.
There was no written agreement between the prisoner and
his employers, and the evidence above stated as to his position
and duties was given by Mr. B. L. Barnett.
During the trial, Mr. Chubb, Q.C., who prosecuted on behalf
of the Crown, tendered as evidence in support of the information :
— (1) a proof of debt in the insolvent estate of J. M'Alpine,
sworn and made by the prisoner on the 21st May, 1886, on behalf
of E. Barnett & Co. ; (2) a proof of debt in the insolvent estate
of A. J. Bing, sworn and made by the prisoner on the 14th April,
1886, on behalf of E. Barnett & Co. ; and (3) a preliminary proof
of debt in proceedings for liquidation by arrangement or com-
position instituted by G. Chadwick the younger, sworn and made
by the prisoner on the 26th July, 1886, on behalf of E. Barnett
& Co. In each of these proofs of debt the prisoner deposed
that he was a " clerk to E. Barnett & Co." The last- mentioned
proof related to goods that had been supplied by E. Barnett &
Co. to the debtor between 5th May and 26th June, 1886, and to
promissory notes that had been made by the debtor in favour
of E. Barnett & Co. between the 19th April, 1886, and the 14th
May, 1886. The prisoner's counsel, Mr. Power, objected to the
admission of each of the proofs. I overruled his objection,
and admitted the three proofs in evidence. The proofs so admitted
accompany this case.
Mr. Power tendered, as evidence on behaK of the prisoner,
a power of attorney made by Mr. B. L. Barnett on the 16th
December, 1886, in favour of his brother, Mr. E. M. Barnett,
and the prisoner. By such power of attorney Mr. B. L. Barnett
substituted, with certain exceptions, powers that by an. earlier
deed poll had been conferred on him by his partner, Mr. Emanuel
Barnett, and conferred like powers, on his own behalf, on the
same donees. The effect of the power of attorney was to repose
on the prisoner and Mr. E. M. Barnett jointly, and, in the event of
of the absence, illness, or incapacity of either of them, but so long
only as such absence, iUness, or incapacity continued, in the other
solely, with specified reservations, the management and control
" of the business of E. Barnett & Co., during the absence from
Queensland of Mr. B. L. Barnett. The power of attorney accom-
panies this case. I refused to admit it in evidence, on the ground
that it was irrelevant and could not afiect the status of the
-.prisoner on the dates mentioned in the information.
In my charge to the jury I told them not to regard the
proofs of debt that were admitted by me as evidence of the
character or capacity in which the prisoner was employed by
E. Barnett & Co., but to treat them simply as evidence of the
fact that the prisoner was in that firm's employment on the dates
when the proofs were respectively made by the prisoner.
CRIMINAL REPOETS, 1860-1907. 199
On the conclusion of my charge to the jury, the prisoner's Beqina v.
counsel requested me to reserve the following questions of law ^'^''^ham Street,
. ,, ^ -J i- St J.T ■ ri 1. THE YOnNQER.
tor the consideration of this Court : —
(1) Was the proof of debt, dated the 26th July, 1886, properly
received in evidence ?
(2) Was the power of attorney of the 16th December, 1886,
properly rejected ?
I did not pass judgment on the prisoner, but postponed such
judgment until the questions reserved had been decided by this
Court, and I committed the prisoner to prison, and he now is in
prison.
Charles' Stttaet Mbin, J.
2nd June, 1888.
Power and lAlley appeared for the prisoner ; Chubb Q.G. and
Beat for the Crown.
Power : The issue was — ^Was the prisoner a clerk on the date
of the alleged embezzlement ? Was he a clerk on 12th July ?
There should be no presumption in a criminal case. There was
no objection to the two first proofs of debt that were put in evi-
dence ; but the third was remote, and the conviction therefore
bad. R. V. Gibson, 18 Q.B.D. 87, R. v. Fairie, 8 E. & B. 486.
LiLLEY C.J. : There is a chain of proofs beginning in April, one
in May, and one in July. The two first lead up to the third ;
as Unks in the chain of proofs none of them is remote. We are
unanimous against you on that point.
Power : As to the power of attorney of December, 1886, the
Crown pressed their objection to its admission, and His Honour
rejected it. If the document of 26th July was admissible, that
one of December should also have been. There was some evi-
dence that prisoner was probably a financial agent, with more
power than a clerk. It is no doubt a question of degree of
remoteness.
LiLLEY C.J. : We do not think the power of attorney was
admissible ; or that it would have served you, if admitted.
lAlley followed. The Crown asserted that on 15th March
prisoner was a clerk, again on 3rd June, and again on 12th July.
By way of showing that he was a clerk on 12th July, they put in
a proof of debt sworn some days after that date in which h©
admitted that he was a clerk. There was nothing in that proof
to show that he knew anything of previous transactions ; there
was nothing in The Insolvency Act requiring him to know th©
business of the firm.
200 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. Mbin J. : Then how does a man swear that another is indebted
^;rZ';ar'' to the erm of which he is an employ^ ?
Lilley : If he could not do so, no more could an executor swear
to the business of a testator who had carried on that business
himself.
Lilley C.J. : The executor would make his affidavit in proper
form, no doubt. The Insolvency Act does not allow a man to
swear a proof of debt as of his own knowledge, when he actually
does not know, but is merely informed. If prisoner swore falsely
in this case, the affidavit may be bad under the Insolvency Act ;
still it is admissible evidence per se in this trial.
Chubb Q.C. and Real were not called upon.
Lilley C.J. LiLLEY C.J. : The two points reserved for the prisoner have
been put strongly by Mr. Power and Mr. Lilley. In this ease,
1st, was the proof of debt dated 26th July, 1886, properly received
in evidence ? That one only is assailed. In order to see whether
it was properly received in evidence, there are two Hues of circum-
stances, either of which, to my mind, would determine the ad-
missibility of the document. The first is that between 15th
April and 26th July there were a series of proofs, so to speak, in
which the defendant swore that he was a clerk to Barnett & Co.
Now the embezzlements were charged as having taken place on
15th March, 3rd June, and 12th July. The only one of those
dates not within the period covered by these proofs, is that of
15th March, and that is before. With respect to the others, we
may presume that defendant had continued to be a clerk during
that period ; and with respect to 15th March, we may presume
that he was a clerk before, and continued to be a clerk after that
date, since he swears that transactions of the firm in December,
1885, were within his own knowledge. The proof of 14th April
contains the statement that the facts were within his own know-
ledge, and, notwithstanding that that averment is not in the proof
of 26th July, yet, when a man swears to another's affairs, we may
take it that they are within his own knowledge. We must take
it that between these extreme dates of dishonest transactions,
the defendant may be reasonably believed on his own oath to
have been a clerk. I think that averments made by a man at
not too remote a period from the date of the transactions im-
peached may be given in evidence against him. The question
of remoteness is a subject for the judge, and he must consider it.
I must take it that no such objection was raised here, and that,
CRIMINAL REPOETS, 1860-1907. 201
if it had been, my learned brother should have overruled it, . Reqina v.
, '' Abraham Street,
because here the proofs are made at periods not too remote from thk younoer.
the transactions which took place before 15th March, or just .. ~ ,
immediately before 12th July. On the ground that the extreme
dates were not too remote either way, I must hold that the
evidence was admissible.
From every point of view, there was a chain of circumstances
deposed to by prisoner in these proofs which would strengthen
the presumption of continuance, that is, that he was a clerk
during the whole of the period sworn to in these proofs. In the
first of them, that of 21st May, the prisoner Street swore that
M' Alpine was indebted to Barnett & Co. in £26 odd, and that
Barnett & Co. held securities for that, one dated so far back as
1st December, 1885, and the other being after March, 1886, and
that the debt was incurred, and for the considerations above
stated, within his own knowledge. Then there is a subsequent
proof of 14th April, in which he goes further back still, and swears
in 1886 that a man named Bing was indebted to Barnett & Co.,
to his own knowledge, so far back as 1st October, 1885. Then
comes the proof of 26th July, on which the question of admis-
sibility has been alone raised, and in which he says that he is a
clerk as in the other proofs, and that George Chadwick is indebted
to Barnett & Co. in £317. I think that, when a man swears to
that, he swears from knowledge ; it is not a proof from informa-
tion and belief, but by one who knows. He may do so as one
engaged in the business from day to day. In that, he goes back as
far as 19th April, setting out various securities, and the particulars
of debts. That proof is admissible on two grounds, first, that it
is not too remote from the other transactions, and second, that
he deposes that he is a clerk. That status may most reasonably
be presumed to have continued from 15th March to 12th July.
Then this proof was rightly admitted. Founded on the previous
proofs, it is the concluding link in a chain, of which the two pre-
vious proofs are links, and concludes the previous presumption,
which the jury may take for a fact, that he was a clerk during the
whole period of the information, before and after those three
dates, when he is alleged to have appropriated his master's money.
My learned brothers agree with me that the convictions must be
upheld.
HARDi2fG J. : The prisoner was indicted for embezzlement, Harding J.
and, in cases of this crime, the law allows three separate charges
to be proceeded upon one information, so that there were at this
202
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
Aebahaiu Stbket,
tbe yobkgeb.
Harding J.
time before the jury the charge of embezzlement on 15th March,
3rd June, and 12th July. As to each of these charges the evi-
dence must be sufficient to convict the prisoner. The charge
being for embezzlement, one of the issues must be, and was,
whether at the time of the offences charged to have been com-
mitted, the defendant vi^as a clerk to the owner of the property
said to have been embezzled ? This was in issue. Secondly, the
prisoner raised the issue, that, if it was proved at any particular
moment that the relation of clerkship existed, yet directly after-
wards it had ceased to go on. In the course of the trial two docu-
ments were tendered, one of 21st May, the other dated 14th April,
Now, these two documents were clearly admissible, without
anything as to their contents, as to the embezzlements charged
to have taken place on 3rd June, and 12th July. They were
admissions of his status at the time just before those embezzle-
ments. These were put in and contained on the face of them
admissions by the prisoner, on the dates they were sworn, that
he was a clerk — that that relation existed between him a^d the
parties from whom the money was embezzled. Now, the first
one, that of 21st May, being put in, it constituted the relationship,
and from that a presumption arose that that relationship con-
tinued, until it was rebutted, and it at once threw the onus on
the prisoner of rebutting that presumption. Then, the one of
14th April was put in, and it shows an admission of the relation-
ship then, and raises a presumption that it existed and continued
to exist. That one of 14th April strengthens the one of 21st May.
So far, then, we have a relationship proved to exist on 21st May
and 14th April. Another document is then tendered, dated 26th
July. But it must be remembered that the issue was that this
relationship was presumed to continue until shown to have been
put an end to. It is a contention in issue that he was a clerk,
and, this being put in, it goes to strengthen the presumption that
the relationship continued right through. On that ground alone
I think it was receivable. That would go only as to the acts
charged on 3rd June and 12th July. So far as that goes, I do not
think there can be the least possible doubt as to its admissibiUty,
nor am I going to throw any doubt on it, because they were rightly
admitted. In these documents, the deponent acknowledged
himself at the time to be a clerk. He speaks of his own
knowledge, because a man making an affidavit always
speaks of his own knowledge, unless he qualifies it by
showing the sources of his information. He omits here
OEIMINAL EEPOETS, 1860—1907. 203
to give any sources of information, and does it at his . Begina v.
., . , 1 , n ,. Abraham Street,
peril, ana it would be for a jury, on an indictment for the YonNOER.
perjury, to say whether he did so wilfully. But here, speaking ^ ^^ j
without quaHfication, he asserts that he knows the facts stated
therein. If he did, these dates run back behind 15th March, and
running back as they did, it was a question for the jury to say :
Do we beheve what this man then swore on his oath ; that he
knew in connection with Barnett's business these facts stated ?
If not, we must believe that he was intentionally swearing falsely.
That was a question for the jury, whether or not they gave
credence to what was laid before them. If they did, why, from
that, though not direct evidence, it was a circumstance from
which they were entitled to infer that he was a clerk during that
period. So that I think the documents were properly before the
jury as to each charge of embezzlement then being tried. Then
it was said that a document tendered by Mr. Power, on behalf of
the prisoner, was improperly rejected. This document was dated
16th December, 1886. As compared with the dates of the
embezzlements charged, I think that document was properly
rejected. I need not give further grounds for my judgment.
Mein J. : I concur. Mein J.
LiLLEY C.J. : Our answer, then, to the first question is. Yes ; LiUey C.J.
and to the second. Yes. The convictions are affirmed, and the
prisoner is ordered to be brought up for sentence before our brother
Mein on Wednesday morning.
Solicitors for prisoner : Chambers, Bruce & McNah.
Solicitor for prosecution : Crown Solicitor.
[ToowooMBA Circuit Coitrt, Criminal.]
REGINA V. KNACK.
[3 Q.Ii.J. 101. — Note. — See sec. 572 of Criminal Code as to amendment of Indict-
ment.]
Information for infanticide — Two counts — Information quashed — 1888.
Second information — Sex of child unspecified — Information nth July,
quashed — Third information — Amendment of amended inform- Harding J.
ation.
Chubb Q.C., for Crown, presented an information against Ellen
204 QUEENSLAND JUSTICE OF THE PEACE.
Heoika u. Knack. Knack, containing two counts, (1) that she had murdered a male
child, (2) that she had murdered a female child.
Macnaughton, for prisoner, objected to double count.
Harding J. ordered the information to be quashed. Archbold,
19th Ed., 49.
Chubb Q.C. then presented an information against the prisoner
for the murder of a child, name unknown.
Macnaughton objected to the information, on the ground that
the sex of the child should be stated ; and, if that objection be
overruled, on the ground that there should be some allegation in
the information that the sex was unknown to the Prosecutor.
Hakding J. intimated that he did not consider mention of the
sex absolutely necessary, if unknown.
The information was quashed on Chubb consenting to Mac-
naughton's application.
Chubb Q.C. then presented an information for the murder of a
female child, name unknown.
Macnaughton objected on the ground that the Court had no
power to amend an amendment. Archbold, 19th Ed., 225.
This objection being overruled, the trial proceeded in the
usual course, and prisoner was acquitted.
<
Solicitor for prisoner : Murray, Toowoomba.
[Brisbane Criminal Sittings.]
REGINA V. ROCHE.
[3 Q.L.J. 139.— Note.— See sec. 613 ol Criminal Code, and see B. v. Kovalky, 6
Q.L.J. 219, post.]
1889. Practice — Plea — Allegation of insanity — Jury sworn to try the
a7th, asth May. same — Right to begin — Insanity Act, s. 48.
Harding J. A prisoner committed for sentence from Inferior Court, allowed to withdraw
plea of guilty, on his counsel alleging insanity, and on the plea of not guilty being
entered a jury sworn to state whether prisoner understood proceedings of the Court.
On the finding of the jury that the prisoner did comprehend the proceedings
and was sane, it was ordere'd that the plea of not guilty be withdrawn and that
a plea of guilty be entered instead.
Hdd, the right to begin is with the prisoner, on whom the onus to prove insanity
lies.
Segiiia v. Davies, 3 C. and Kir., 329, not followed.
Regina v. Turton, 6 Cox C.C. 385, followed.
CRIMINAL REPOETS, 1860—1907. 205
Information against John Roche for larceny. The prisoner Kbginaj^Boohb.
was committed for sentence from the Police Court.
Wilson, for prisoner, asked to have the plea in the inferior
Court withdrawn and made a statement, alleging insanity on the
part of the prisoner at the time of arraignment.
Mansfield, for the Crown, submitted that unless it could be
shown that the prisoner was insane at the Police Court,
when he made his plea of guilty, it would be of no avail.
Wilson : If it is shown that a prisoner is of unsound mind, all
proceedings can be stayed at any time.
Harding J. : Well, then, he goes to prison for ever ?
Wilson : No, he is confined during the Queen's pleasure.
Mansfield then tendered the depositions, and the plea of guilty
entered in the Police Court.
Wilson : The difficulty in this matter arises out of the fact
that such cases are not provided for in the new Act. If at any
time it comes to the cognizance of the Court that the prisoner is
insane, aU. proceedings must be stayed.
Harding J. : It will be for the jury to say whether he was
insane at the PoHce Court, and whether he is insane now.
Wilson : Such a proceeding is not provided for in The Insanity
Act of 1884, which repealed the old Act of George III, and it is a
question now, whether a jury can be summoned to try the question.
The difficulty arises in this case from the committal of the prisoner
for sentence.
Harding J. : There is no difficulty about that. I cause the
prisoner to be re-arraigned. The man has pleaded guilty, which
is simple enough, and you assure me that you have evidence of
the man's insanity.
Wilson : And I submit that the proceedings must be stayed.
Harding J. : The proper course wiU be for Mr. Wilson to ask
for the prisoner's plea to be withdrawn. If I accede to that, I
will have a jury empanelled to try the question, whether or not
the prisoner can understand the proceedings and plead to the
information. This is the course I took at Maryborough, in
Regina v. Jansen, about 1880, before the new Insanity Act came
into force, and I do not see how that Act affects what I did on
that occasion. The only difference is, that the old Insanity Act
was in force then, and the present Act operates now. The real
206 QUEENSLAND JUSTICE OF THE PEACE.
Begina v. Eoche. question is whether the prisoner is in a state of mind to under-
stand what we are doing. If he is not, we must wait till he is,
subject to Her Majesty's pleasure.
Wilson then asked that the prisoner's plea of guilty should he
withdrawn, and on the concurrence of the Crown, the request was
acceded to. The prisoner was then remanded till the next day, in
order to allow the Crown to inquire into his mental condition.
On the following day the prisoner was arraigned and pleaded not
guilty. A jury was then empanelled, the following oath (Arch-
bold, 19th Ed., p. 153) being administered :
You shall well and truly try whether John Roche, the prisoner
at the Bar, who stands charged with felony was able, competent,
and of sufiBcient intellect to understand and comprehend the
proceedings on the trial when he pleaded to the information
after referred to, and whether he is now able, competent, and of
suflBcient intellect to understand and comprehend the proceedings
on the trial to be now had and taken on the information preferred
against him for the said felony, and upon which he hath been
now arraigned and pleaded not guilty, so as to make a proper
defence thereto. So help you God.
And the following oath was administered to the witnesses : —
The evidence which you shall give to the Court and jury upon
this inquiry, shall be the truth, the whole truth, and nothing but
the truth. So help you God.
The usual proclamation as to witnesses, except one medical
witness on each side, was then made.
Haeding J. then called on Wilson to begin.
Wilson : I have no objection to begin, but there is a different
practice that was followed in Eegina v. Dames (3 C. & Kir., 329).
Habding J. : That case has not been followed. 1 Russell on
Crimes, 135-6 ; Eegina v. Turton (6 Cox C.C, 385). A man is
presumed to be sane until the contrary is proved, and the burden
of proof falls on the prisoner now, though it may shift as the case
goes on.
Wilson, in opening, referred to 1 Russell on Crimes 114 ; Begina
V. Oxford, 9 C. & P., 546 ; and as to admissions or statements,
Eegina v. Pearce, 9 C. & P. 670. Medical and other evidence
was then called, and counsel addressed the jury.
The jury found that the prisoner was able to comprehend the
proceedings on the trial when he pleaded to the information, and
(2) that he was now capable of understanding the proceedings.
CRIMINAL REPORTS, 1860—1907. 207
Mansfield thereupon applied that the plea; of not guilty be Begina v. Boche.
struck out, and the plea of guilty entered.
Harding J. : Be it so.
Mansfield prays judgment.
Wilson did not desire to press the question of aanity any further,
but asked for mercy on the ground of previous good character.
The prisoner . was then sentenced.
SoUcitors for prisoner : Chambers, Bruce, and McNab.
Solicitor for Crown : J. Howard Gill.
[Full Court.]
REG. V. RODY HOGAN.
[3 Q.L.J. 143.— Note.— See R. v. Kuruwaru, 10 Q.L.J. 139, post ; R. v. Corbett,
1903 S.R.Q. 246, post ; R. v. Warton, 1905 S.R.Q. 167, post. As to improper
admission of evidence for defence, see now s. 671 of Criminal Code.]
Dying declaration — Authenticity of, without declarant's signature — 1889.
Absence of prisoner while declaration was being made. June.
A dying declaration is admissible if its terms can be proved by a witness who
was present when it was made, and such declaration does not require to be signed
or authenticated in any other way.
Special Case stated by Mr. Justice Cooper : —
Judge's Chambers,
Supreme Court, Bowen,
May 23rd, 1889.
Reg. v. Rody Hogan.
The above-named prisoner was tried before me at Towns-
ville, on the 2nd and 3rd of May instant, on the charge of having
murdered a man named William GuUfoyle. A material part of
the evidence against Hogan, was Guilfoyle's dying declaration,
which had been taken down in writing by Mr. ZiMman, the Police
Magistrate of Herberton. It began with the words, " I, William
Guilfoyle, believing that I am in danger of impending death, and
that I have no hope of recovery, do solemnly and sincerely
declare," and proceeded to relate the circumstances of the crime.
At the end were inscribed these words and figures, " Declared
before me this fourth day of November, 1888, at Herberton, A. H.
Zillman, Police Magistrate." The document was not signed or
otherwise marked in any way by the declarant.
William David Bowkett, a duly qualified medical practitioner
of Herberton, was examined, and in the course of his evidence
208 QUEENSLAND JUSTICE OF THE PEACE.
Beg. !■. EoDTT said, " I was present on the 4th November, when GuiKoyle made
^^^- a dying declaration. Mr. Zillman, Police Magistrate, and Mr.
Ringrose, barrister, were there at the time, and, for a portion of the
time. Constable Lanigan and prisoner. The declaration was taken
down in writing. It was read over to Guilfoyle. While Guilfoyle
was making his declaration the prisoner was brought into Guil-
foyle's presence, and Guilfoyle was asked whether that was the
man, or whether that was Rody Hogan (I can't remember which),
and he said, ' Yes.' GuiKoyle was suffering a good deal of pain.
His mind was clear." The witness then looked at a document and
said, " This is the declarationi"
Mr. Macnaughton, of the bar, who defended the prisoner,
objected to its reception, on the ground that the prisoner was not
present all the time.
I overruled the objection.
The witness continued, " I had no hope of Guilfoyle's recovery
and I told him so."
The document was then tendered ; no further objection was
taken ; it was admitted and read. No further evidence was
given upon the point under consideration.
After the jury had retired, Mr. Macnaughton asked me to
reserve a case for the consideration of the Pull Court, on the
ground that the declaration made by Guilfoyle, was not signed
or authenticated on the face of it by him, and was consequently
not receivable in evidence, and ought not to have been left to the
jury. He cited Begina v. Gibson, 18 Q.B.D., 537.
The jury convicted the prisoner, and I passed sentence of
death upon him. I respited the execution of the sentence until
after the decision of the Full Court upon the point reserved
should be known.
Pope A. Coopek.
Power, for the Crown, submitted that the objection should be
overruled. This case was similar to King v. Reason cfc Nantes,
1 Str., 499.
Lilley C.J. LiLLEY C.J. : I see now why Reg. v. Gibson is mentioned here.
Under that case, now, the prisoner's counsel may wish to have
certain evidence in for the sake of his client, and afterwards should
it turn out to be inimical, the Judge would have to reject it,
because it should not have been admitted. I very much regret
that that decision has been given. We are bound by it ; and under
it we must now treat this matter, as if counsel had been present
and had objected. A prisoner now only needs the luck to get a
bit of evidence in, that the Judge should not have allowed in
against him, even if ehcited by his own counsel, and he is as if it
had been objected to by counsel and put to the jury.
The document here was not a deposition ; we can only treat
it as a dying declaration. It had to be proved by someone who
CRIMINAL EEPORTS, 1860—1907. 209
heard it taken. Here the doctor does that. There is nothing ^Hooan°"^
in the point that the prisoner was not present ; nor in the point
that it was not signed by the declarant. The terms of the declara- i ey . .
tion are clearly proved by the witness, who says he was present.
There is nothing here, as far as I can see, that might not have
been admitted. As the terms of the declaration were proved by a
witness present when it was made, I think it was clearly admissible,
and need not have been signed, or authenticated in any other
way. The man may not have been in such a condition as to have
borne to have his deposition taken. These things are usually
done in a hurry. Had it been possible, the prisoner being there,
it would have been better to have taken a deposition. The
conviction must be affirmed.
Solicitor for Crown : Gill, Crown Solicitor, for Petrie, Crown
Solicitor, Bowen.
[Full Court.]
BERNECKER v. WHITE.
[4 Q.L.J. 1.— Note.— Brands Act of 1872, s. 27, is repealed, see now s. 447 ol Criminal
Code. Brands Act Amendment Act of 1884, s. 2, Is repealed, see now s. 449
of Criminal Code.]
Brands Act of 1872, s. 27, and Brands Act Amendment Act of 1890.
1884, s. 2 — Limitation of time for information after discovery March.
of offence — Costs to the Crown. LilUy G.J.
Mein J.
B. was convicted under the above statutes of illegally branding a cow, upon
an information laid by the Inspector of Brands, more than a month after the
discovery of the branding by the owner W., but within a month of the time when
W. informed the inspector thereof.
Held, that the limitation of time in s. 2 of BruTids Act Amendment Act of 1884
relates to the discovery of the offence by the person laying the information, and
not to any person who may first make the discovery, and neglect to lay an infor-
mation.
The Crown, having appeared and succeeded on behalf of the Inspector for
Brands, are entitled to coats.
Bebneckeb had been convicted under the Brands Act of 1872,
s. 27, of illegally branding a cow, the property of White, by
putting his own unregistered brand on it. The alleged illegal
branding was said to have been in June, 1889. White informed
210 QUEENSLAND JUSTICE OF THE PEACE.
Berneckee !'. Ferry, the Inspector of Brands, and prosecuted on the 2nd
' December, 1889, and Ferry, after inspection of the cow, laid an
information on 13th December, 1889. White had heard, about
six months before 2nd December, 1889, that his cow bore defend-
ant's brand.
Rutledge, for the defendant, appealed and obtained, before
Mein J., at Chambers, a rule nisi for a quashing order against
White and the convicting justices, on the ground that the breach
of the provision of s. 27 of the Brands Act of 1872, complained of,
was discovered more than one month before the information was
laid ; the rule asked for costs against White.
Rutledge and Lilley now appeared for the appellant, and moved
the rule absolute on the same ground. White was the person
who should have laid the information. White put the law in
motion, and got the Inspector to lay the information. White
had made a discovery of the breach of the law six months before.
Referred to Metropolis Local Management Amendment Act,
25, 26 Vic, c. 102, s. 107, as an analogous Act ; and to Brutton v.
St. George's Vestry, 13 Eq., 339.
Lilley C.J. : Can there be any reasonable doubt about the
language of the section ; discovery is when a man has reasonable
ground to beHeve that an offence has been committed. Here
it is the discovery by the person who prosecutes, that is meant.
Real : The discovery by the - Inspector was on the day that
White informed him ; he went and inspected the beast, and within
a month laid the information. The rule should be discharged.
Lilley C.J. LiLLBY C.J. : This was a prosecution by the Inspector of Brands,
— a public officer charged with the administration of the Brands
Act, which is an Act of public policy, and for the protection of"
the public. One object of the statute is to prevent the commission
of felonies, and other offences against persons owning stock.
There was a public officer prosecuting, — Mr. Ferry — on the
information given him by Mr. White, who alleged that his cow
— or calf at the time probably, when the brand was put on —
had been wilfully branded by the defendant, Bernecker. Our
judgment must rest upon the interpretation which we put upon
the Brands Act Amendment Act of 1884. The prosecution origin-
ated under the 27th section of the principal Act of 1872, which
provides that, —
"if any person wilfully brand any stock of which he is not the
rightful owner, or shall wilfully cause, direct, or permit any stock
CEIMINAL REPORTS, 1860-1907. 211
of which he is not the owner, to be branded with his brand, such BiinNECKER v.
person shall on conviction for every such offence in a summary ^hite.
way, forfeit, and pay any sum not exceeding fifty pounds." Lilley C.J.
Well, as I have said, our judgment must rest on the interpreta-
tion which we put on the 2nd section of the Amending Act.
Originally the information for a breach of this statute must be
laid within six months of the commission of the offence. For some
reason or other the Legislature saw fit to alter the law, and they
enacted in this 2nd section of the Amending Act, that —
"on information for a breach of any of the provisions of the 27th
and 28th sections of the said Act, may be laid and prosecuted
in a summary way at any time within one month from the dis-
covery of such breach, anything in any law or statute to the
contrary notwithstanding."
Now, our interpretation is that discovery is made under this
section when the person who prosecutes has reasonable ground
for beUeving that an offence has been committed. The person
who prosecuted here was the Inspector of Brands, a public officer
prosecuting for a public offence, who laid the information within
one month of the time when he made the discovery, within the
m^eaning of the statute, as we interpret it. It was not until
White, the owner, informed him — Ferry — that Bernecker had
branded his cow, that he can be said to have had reasonable
ground for believing that an offence had been committed. Prob-
ably it might be extended to the time when he went to satisfy
himself, by inspection of the animal, that the double brands
were on it — first. White, the owner's brand, and then, on the
same side, Bernecker's brand. That being so, he laid his infor-
mation within the time limited by the statute. First, then,
discovery means when the person prosecuting has reasonable
grounds for beheving that an offence has been committed, and
second, the limitation is against that person and not against the
actual owner. Any other interpretation would lead to this :-—
fifty different persons may have discovered this and not prosecuted,
if they chose to wink at it and not do their duty. We would then
have to go back to the person who first discovered the offence,
and a man might go without punishment. The old limitation
is gone, and this goes back to the old rule of law with respect to
larcenies, that the ofience is not purged until the offender is
convicted or acquitted, unless he can show that the person who
laid the information discovered the offence more than a month
before. That being so, the rule must be discharged.
212 QUEENSLAND JUSTICE OF THE PEACE.
^"^ Whit^ " ^^^^ J- concurred.
Mein J.
Reed asked for costs. The Crown had appeared in the interests
of the public and succeeded, and was therefore entitled to costs,
Rutledge : Costs were asked by appellant against White.
This was a case of first impression and of pubUc importance.
The Crown ought not to get costs.
1 ey C.J. LiLLEY C.J. : My brother Mein has a strong impression that the
Crown should not have costs. I am inclined to disagree with
him. This is a public officer, and the Crown comes here to defend
his act. I think it ought to go with costs. Rule discharged with
costs.
Sohcitors for appellant : Ruthning <fc Byram.
Solicitor for respondent : Gill, Crown Solicitor.
1891.
June,
[Full Court.]
REGINA V. LUM HOOK.
[4 Q.L.J. 63.— Note.— 29 Vic, No. 13, ss. 48, 49 ; 38 Vic, No. 3, s. 7 ; and 53
Vic, No. 17, ss. 4, 11, 17, have been repealed ; 40 Vic, No. 2, s. 2, is
repealed, see now s. 669 of Criminal Code.
Crown Case Reserved — Jurisdiction — Northern Supreme Court —
29 Vic, No. 13, ss. 48-49—38 Vic, No. 3, s. 7—53 Vic,
No. 17, ss. 4, 11, 17 — 40 Vic, No. 2, s. 2 — Perjury — Judicial
proceeding — Small Debts Act (31 Vic, No. 29) — Non-amend-
ment of proceedings.
The Full Court sitting at Brisbane, is the proper tribunal for a Crown Case
Reserved by a Judge of the Northern Suprerae Court.
Section 2 of 40 Vic., No. 2 [Criminal Practice Amendment Act of 1876), is not
impliedly repealed by The Supreme Court Act of 1889.
An action had been commenced in the Small Debts Court at Cairns, against
Lum Hook and Chong Chow, trading together in partnership, for goods sold and
delivered. The plaintiff abandoned the case against Chong Chow, and without
amending the proceedings in any way, evidence was taken for the defendant,
who in the course of his evidence, committed the alleged perjury. Judgment was
given for the plaintiff against Lum Hook alone.
Held, that this was a judicial proceeding, and it was competent for the Court
to proceed in the action after the abandonment against one defendant, and that
the conviction for perjury should be sustained.
Case Rbseeved by Chubb J. :
CEIMINAL EEPOETS, 1860-1907. 213
1. The defendant Lum Hook was tried before me at the Circuit Beoina v.
Court Cairns on the second day of April 1891 on an information Lpm Hook.
for perjury.
2. The perjury was charged in the information to have been
committed in the Court of Petty Sessions Cairns in its Small
Debts Jurisdiction on the trial of an action in which one Long
Lee was plaintiff and the defendant and one Chong Chow were
defendants.
3. The following evidence was adduced by the Crown : The
plaint summons and particulars of demand in the action were
for £27 19s. 9d. for goods sold and delivered by plaintiff to Lum
Hook and Chong Chow trading " together in partnership." — On
the hearing after the plaintiff had given his evidence and before
the alleged perjury was committed the plaintiff abandoned the
case against Chong Chow whereupon and without having amended
the proceedings in any way the Court proceeded to take evidence
for the defendant. The defendant gave evidence and in the
course of it made the statements upon which the perjury was
assigned and judgment was given for the plaintiff against the
defendant alone for the amount sued for.
4. Upon this evidence I reserved for the consideration of this
Honorable Court two questions viz. : —
(a) AVhether after the plaintiff had abandoned the case
against Chong Chow the action was as regarded the
defendant a judicial proceeding.
(b) Whether after such abandonment it was competent for
the Court to proceed further in the action against the
defendant alone.
5. I refer the Court to sections 15, 19, 21, 29, and 30 of The
/Small Debts Act of 1867 which induced me to reserve the questions.
6. The jury found a verdict of guilty and I postponed judgment
until the questions reserved had been decided and accordingly
committed the defendant to the prison at Townsville where he
now is.
7. I am in doubt whether the second section of The Criminal
Practice Act Amendment Act of 1876 has not been repealed by
implication by The Supreme Court Act of 1889. As this is the first
case reserved by a Northern Judge since the passing of the lattt r
Act I have reserved it for the Court at Brisbane in order that the
point may be considered. I request the decision of the Court
upon the questions reserved.
C. E. Chubb, J.,
Chambers, Supreme Court, Northern Judge.
Townsville, 29th April, 1891.
Byrnes, S.G., Scott with him, for the Crown.
There was no appearance for the defendant.
Byrnes : The question of jurisdiction is raised in this case,
whether a Crown Case Reserved by a Northern Judge should be
heard at Brisbane as heretofore, or at Townsville. The Supreme
214 QUEENSLAND JUSTICE OF THE PEACE.
Kegixa v. Court Act of 1889 expressly repeals The Supreme Court Act of 1874,
^" ^' ss. 15-21 inclusive, and the Act to amend The Supreme Court Act
of 1874 (41 Vic, No. 17), but no mention is made of The Criminal
Practice Amendment Act of 1876. By s. 2 of that Act, a Crown
Case Reserved by a Northern Judge, shall be heard by the
Supreme Court sitting at Brisbane. The practice is regulated by
ss. 48 and 49 of The Criminal Practice Act of 1865, which require
the case to be transmitted to the Judges of the Supreme Court.
By s. 7 of The Swpreme Court Act of 1874, the Supreme Court is to
be holden before three Judges, except under certain circumstances.
By s. 17 of The Supreme Court Act of 1889, the word Townsville
is to be substituted for Brisbane. But this is only a quaUfied
provision. On the ground of convenience, there can be no doubt
the cases should be heard in Brisbane, otherwise there might
be a dijfference of opinion between the two Judges, and a divergent
criminal practice exist in two parts of the colony. There is no
provision for an appeal from TownsviUe to Brisbane in criminal
matters. [Harding J. : There is no appeal in a Crown Case
Reserved.] Section 11 of the same Act excepts jurisdiction on
appeal from a decision of a Judge of the Supreme Court, and s. 4,
excepts any appellate jurisdiction vested in the Full Court at
Brisbane.
The Chief Justice : That decides the question. Section 2
of The Criminal Practice Act of 1876 is not repealed. The appellate
jurisdiction in criminal cases rests with this Court alone.
Byrnes : As to the merits, the difficulty of the Judge seems
to have been whether there was a judicial proceeding, as the
proceedings had not been amended. [Habding J. : The question
is simply — Can an action proceed against one defendant when a
non-suit is granted to another ?] The defendants were in partner-
ship. [The Chief Justice : That makes no difference.] The
points reserved are within the words of Denman J., in Reg. v.
Hughes, 4 Q.B.D. 614, at 637 — " I am of opinion, however,
that we ought not to have regard to the conviction, in considering
whether perjury was committed, but to look to the moment at
which the false evidence was-given, and consider whether at that
moment the Magistrates had jurisdiction to hear that evidence
judicially. And I think that they had jurisdiction to hear that
evidence judicially, if, at the time at which it was given, it was
evidence which in any possible event, they might have acted
upon judicially in a matter within their jurisdiction ; whether the
result of their acting upon it might have been to convict, or to
CEIMINAL REPOKTS, 1860-1907. 215
acquit, or to adjourn, or to send for trial, or to take bail, or to do EaaiNA '•
. •■ ' ' LuM Hook.
any other judicial act within their competency."
The Chief Justice : We think this was a judicial proceeding, The Chief Justice
and if the false evidence given was material, that there was perjury.
We answer question A, yes ; and question B, yes. The conviction
is sustained. Let the Judge give judgment.
Sohcitor for the Crown : J. Howard Gill.
[Brisbane Criminal Sittings.]
REGINA V. JOHNSON.
[4 Q.L.J. 130.— Note.— Sec. 207 of Insolvency Act (38 Vie., No. 5) is repealed, see
now s. 519 of Criminal Code.]
Criminal law — Insolvency Act (38 Vic, No. 5), ss. 31, 207) — 1891.
Married woman — Separate property — Married Women's Pro- ^Oth November.
perty Act (54 Vic, No. 9), s. 3, sub. 5. Harding J.
A married woman having separate property is liable to be convicted for an
offence under The Insolvency Act of 1874.
Information against Catharine Mary Agnes Johnson, for
feloniously quitting the colony within four months before the
presentation of a petition for adjudication, and taking with her
property to the amount of £50 and upwards, being a married
woman with separate estate.
Power and Mansfield, for the Crown. Gore Jones for the
prisoner.
Harding J. raised the preliminary question as to the liability
of a married woman under The Insolvency Act.
Mansfield : The information is laid under s. 207 of The Insol-
vency Act. By s. 31 of that Act the provisions of the insolvency
laws apply to all debtors resident in the colony. By the Married
Women's Property Act of 1890, s. 3, sub. 5, every married woman
shall, in respect of her separate property, be subject to the
insolvency laws in the same way as if she was unmarried. The
prisoner had separate property. Eversley on Domestic Relations,
292 ; Williams' Bankruptcy Practice, 315, 316 ; Duffy and Irvine,
Married Women's Property Law, 149, 151 ; Re Gardiner, 20
Q.B.D. 249 ; Holtby v. Hodgson, 24 Q.B.D. 103 ; Scott v. Morley,
20 Q.B.D. 121.
216
QUEENSLAND JUSTICE OF THE PEACE.
Regina I).
Johnson.
Harding J.
Habding J. directed the jury, who found the prisoner guilty,
with a recommendation to mercy on the ground that the prisoner
was not altogether a free agent in the matter. It was also
suggested by a juror that a married woman was supposed to-
obey her husband.
Habding J. : That presumption does not apply in cases of this
sort. These women have fought for their rights. Now they
have got them and must suffer Uke men. It is just as well for
women to know that, having demanded and obtained the rights
of men, they are subject to the same penalties in the event of
their transgressing the law. A year ago an offence of this nature
was not a crime under the law, but the Legislature had now placed
women in the same position as men, and they have to suffer
accordingly.
Prisoner sentenced.
Solicitors for prisoner : Chambers, Bruce and McNah.
1892.
24th February.
Chubb J.
[NoBTHERN Supreme Court, Townsvillb.]
HENDERSON, APPELLANT, v. MACDONALD, P.M., AND
McKIERNAN, RESPONDENTS.
[4 Q.L.J. 133.— Note.— Sees. 181 and 182 of the Justices Act (50 Vic, No. 17) are
repealed, see now ss. 443, 444 of Criminal Code. Sec. 102 ot Larceny Act
is repealed, see now s. 443 (1) ot Criminal Code.]
Justices Act (50 Vic, No. 17), ss. 181, 182Summary jurisdiction-
Receiving stolen goods — Larceny Act of 1865, ss. 4, 96, 102.
In cases of receiving stolen property, the summary jurisdiction of justices ia
restricted to the specific cases covered by s. 102 of The Larceny Acl.
A summary conviction for receiving stolen shutters quashed.
This was a motion under s. 209 of The Justices Act of 1886, to
quash a conviction.
Jameson, for the appellant, moved the rule absolute.
Ross, for the respondent, J. G. Macdonald, P.M., showed cause.
McKiernan, the other respondent, showed cause against costs
only.
The facts of the case were that on the 19th of January last two
wooden shutters, the property of McKiernan, were found by a
pohce constable, armed with a search warrant, upon the verandah
CRIMINAL REPORTS, 1860—1907.
217
of the appellant's dwelling. Appellant told the constable that
he did not claim them, or know whose they were, that they were
brought there by his son the afternoon before, while he was
from home, and that on his return he saw them there. The
shutters were last seen upon McKiernan's shop on the 16th, and
were missed on the 18th January. The appellant's son, called
for the defence, corroborated his father's statement and said
that he found the shutters upon the bank of a creek about one
hundred yards from the shop. Appellant's wife swore to the
son bringing the shutters home. The appellant was charged
with larceny and, electing to be tried summarily, was coni^icted
of receiving the shutters and fined.
Chubb J. : The appellant was tried summarily by the Pohce
Magistrate at Townsville under ss. 181 and 182 of The Justices
Act of 1886, for the larceny of two wooden shutters, under the
value of 40s., the property of McKiernan, and was convicted by
the Justice of feloniously receiving them knowing them to have
been solen. The rule granted by me to show cause why the
conviction should not be quashed contains two grounds, viz. :
(1) No evidence to support the conviction ; (2) That this offence
is not punishable on summary conviction. On the first ground
I am against the appellant. The Justice was evidently not
satisfied with the account given by him as to how he became
possessed of the property, consequently the presumptive evidence
of guUt arising from the recent possession of stolen property was
not rebutted, and there was, therefore, some evidence, though
sHght, upon which he could convict. I do not think that upon
that evidence I should have come to the same conclusion, but
I cannot go so far as to say that the Justice was wrong. It ia
not enough to say that the evidence was weak or conflicting,
or that this Court might have come to a different conclusion —
the rule is that, as the Justices are the judges of the facts, their
finding will not be reversed unless it clearly appears that they are
wrong, or, to put it in other words, that there was no reasonable
evidence to support the conviction. It cannot, therefore, be
disturbed on this ground. On the second ground a question of
the construction of the Statute is involved. The question is
whether the offence of receiving stolen shutters can be dealt with
summarily by Justices. Having regard to the provisions of
of ss. 181 and 182, and to the offences there enumerated, one
would, I think, expect to find the cognate offence of receiving
stolen property amongst them, but a careful reading of them does
Hendebson,
Appellant, v.
Maodonald,
P.M., AND
Eebposdents.
Chubb J.
218
QUEENSLAND JUSTICE OF THE PEACE.
Hendebson,
Appellant, v.
Macdonald,
P.M., AND
McElEBNAN,
Eespondents.
Chubb J.
not disclose any express mention of that offence. If, therefore, it
is covered by the sections, it must, I think, be found, if anjrwhere,
imphed in sub-section 2 of 8. 181 as an offence " declared to be
punishable as simple larceny." Now the offence of simple larceny
is, by s. 4 of The Larceny Act of 1865, punishable at the discretion
of the Court by penal servitude for three years or imprisonment
not exceeding two years with or without hard labour, &c., whereaf
the punishment for the offence of receiving is, by s. 96 of the
same Act, to be at the like discretion penal servitude for any
term not less than three or more than fourteen years, or similar
imprisonment, &c., as in simple larceny. Here, therefore, it is
patent, without more, that receiving is not " punishable as
simple larceny," which words I understand to mean " liable
to the same punishment." The counsel for the respondent,
however, relies upon s. 102 of the Act, which provides that where
the stealing of property is by this Act (Larceny Act) punishable
on summary conviction, the receiver of such property, knowing
the same to be unlawfully come by (this expression is peculiar)
shall be liable, on summary conviction before Justices, to the same
punishment as the thief would be. Counsel for the respondent
has failed to point out, and I have been unable to discover for
myself, that the stealing of shutters is by this Act made punishable
on summary conviction before Justices ; if this is so, therefore
the offence of receiving shutters cannot by virtue of s. 102 be
so punishable. There is a number of things specially named
in the Act, the stealing of which is made punishable "as in the
case of simple larceny," to which the provisions of s. 102 apply,
but shutters are not included in them — see for example ss. 26,
32, 33, 36. 37. Then (apart altogether from The Justices Act) is,
there any other statute which makes the steahng and receiving of
shutters punishable on summary conviction ? I cannot find any,
and the research of counsel has produced none. It appears
to me, therefore, that the offence of receiving in this case is not
within the summary jurisdiction of justices, and that the Police
Magistrate was wrong in so dealing with it. The result is curious,
because if he had convicted the appellant of stealing the shutters,
the conviction would have been good under The Justices Act. In
cases of receiving stolen property, the summary jurisdiction of
justices is, therefore, in my opinion, restricted to the specific cases
covered by s. 102 of The Larceny Act, consequently this conviction
must be set aside, but under the circumstances, without costs. It
may be, and probably is, a casus omissus on the part of the
CRIMINAL EEPORTS, 1860—1907.
219
draftsman, as the addition of the words, "or the offence of
receiving stolen property the stealing of which would be simple
larceny," at the end of subsec. 2 of s. 181, would have covered
the point. A consequential amendment would, of course, be
necessary in s. 182. Order absolute to quash the conviction
without costs.
Solicitor for appellant : E. J. Forrest.
Solicitor for respondent P.M. : C. Selwyn Smith, Northern
Crown Solicitor.
Henderson,
Appellant, v.
Maodonald,
P.M , AND
McKlEKNAN,
llESPOXDENTS.
Chubb J.
[Pull Court.]
BILBY V. HARTLEY AND OTHERS.
[4 Q.L.J. 137.— Note.
-6 Geo. IV., c. 129, s. 3, is repealed, see now s. 534 ot Criminal
Code.]
Criminal law — Intimidation — 6 Geo. IV., c. 129, s. 3 — Effect of
9 Geo. IV., c. 83 — Excessive fine — Amendment — Justices Act
(50 Vic, No. 17), ss. 173, 174, 214, 223, 225.
B. was convicted on a charge of intimidation under 6 Geo. IV., c. 129, s. 3.
Certain shearers, besides B., were endeavouring to raise subscriptions for the
defence of some fellow labourers then committed to trial. B. and another shearer
asked some free labourers to subscribe to the fund. They refused to do so. B.
then said " If you come here to dinner I'll chuck you out," and made use of very
foul language. The free labourers were also told if they came in to tea they would
be very roughly handled. They considered their lives in danger, and complained
to the manager of the station. The justices fined B £10 and £25 123. 8d. for costs,
in all £35 12s. 8d., or in default three months' imprisonment with hard labour.
Held, that the language used amounted to intimidation ; that the fine was
excessive under s. 173 of The Justices Act, inasmuch as the defendant would be
liable to imprisonment for six months under s. 174 of that Act, while the greatest
term of imprisonment under 6 Geo. IV., c. 129, was three months, and that the
fine must be reduced to £4 19s. llfd., and the conviction be upheld.
6 Geo. IV., u. 129, is applicable to Queensland. The effect of 9 Geo. IV., c. 83,
discussed.
Motion for a rule absolute quashing the conviction of Frederick
Bilby, a shearer, before Messrs. W. J. Hartley, P.M., and P. J.
Phillips, J.P., at Blackall, 22nd of September last, on a charge of
intimidation, on the grounds that the justices had no power or
authority (1) to impose or order payment of a fine ; (2) to impose
or order payment of a fine with alternative imprisonment ; (3) to
1892.
February.
220 QUEENSLAND JUSTICE OF THE PEACE.
■^Tro Omers'!''' °^^^^ *^® payment of the sum of 7s. 8d. for costs ; (4) to order the
payment of the sum of £15 15s. cost of witnesses' travelling
expenses ; (5) to order payment of the fine of £10 10s. ; (6) to
impose the penalty and imprisonment ordered ; (7) that the
statute 6 Geo. IV., c. 129, is not in force in the colony of Queens-
land ; (8) that there was no evidence before the justices of
intimidation under the lastmentioned statute.
Lilley, and Conlan, to move absolute the order nisi ; Sir S. W.
Griffith, Q.C., A.G., Byrnes, S.G., and W. A, D. Bell, for the Crown.
Lilley : The facts of the case are these : Prior to September, 9th
1890, certain persons were committed for trial at Rockhampton for
cutting Ebor Creek Bridge. The shearers in the western parts of
the colony, of whom Bilby was one, were raising subscriptions
for the defence of the prisoners, and to get them witnesses and
food during the time they awaited trial. This was being done at
Terrick station, near Blackall, where Bilby was working. On the
morning of September 9th he and Turbot asked certain free
labourers at the breakfast table to subscribe. The evidence at the
prosecution was as follows : Turbot said, " Do any of you fellows
refuse to pay 6s. lOd. towards defraying the rations fund of the
shearers awaiting trial at Rockhampton over the Ebor Creek
affair." AUis said, " I refuse to pay," and so did Oakden and
Riding. Turbot then went to his mates amongst the unionists,
who refused to eat at the same table as the free labourers, and said,
" Here's these men refuse to subscribe. I'll make one to chuck
them out." Bilby went over to the three and said, " Do you
refuse ? All the rest have paid." Allis replied, " I refuse."
Bilby said, " Then don't come here to dinner ; if you do I'll
chuck you out." At midday they all went to their dinner as
usual, when Turbot produced a number of lists for the men to sign
for the expenses of the witnesses. Turbot asked Allis to sign,
and he refused. Turbot again said to his mates, " Here are three
men who won't sign, I'll make one to chuck them out." Bilby said
to AUis and Oakden, " If you come to tea you will be chucked
out," and Turbot added, " I'll make one to chuck them out as fast
as they come in." At tea time the three went for their tea,
and found nothing had been left for them. Turbot said, " If any
of you come in you will be handled." Allis accordingly
considered his life was in danger. He went over to Sutherland,
the overseer, and had his tea with him. The next day AUis
spoke to the manager, and he advised him to seek the protection
of the law. The overseer also spoke to Bilby, who refused " to
CRIMINAL EEPOETS, 1860—1907. 221
cook for the scabs." Allis subsequently laid an information ^"''^'^ «. Hartlett
against Bilby under s. 3 or 6 Geo. IV., c. 129. That section
provided that every person who by violence, threats, or other
means, intimidated another, should, on conviction, be sentenced
to imprisonment, or be imprisoned for any time not exceeding
three months, with hard labour. Under s. 173 of The Justices
Act, power was given to a magistrate to substitute a fine for
imprisonment, to any amount not exceeding £25, provided the
amount should not be such as would subject the offender, in
default of the penalty, to any greater term of imprisonment
than that to which he was Uable under the Act authorising his
imprisonment. In this case the period of imprisonment fixed
by the section of the Act of George IV. was three months. The
Justices, however, fined Bilby £10 and £25 12s. 8d. costs, or in all
£35 12s. 8d., or in default three months' imprisonment with hard
labour. Among the costs they included the expenses of Bilby's
commitment (in the event of his not paying the fine), and of his
conveyance from Blackall to the Rockhampton Gaol. Under
s. 174 of The Justices Act they had no power to inflict a fine of
more than £5, because if they had imposed a greater fine they
would have subjected the offender to a term of imprisonment
exceeding the three months which he was liable to under the
Act of George IV. [Harding J. : They only gave him three
months.] That was so ; but they made him run the risk of
getting six months, because by imposing a fine of more than £5,
they laid him open to imprisonment for six months. They also
ordered him, in default, to pay the costs of his commitment and
conveyance to Rockhampton Gaol. Those costs were an un-
ascertained amount, and it would have been possible for Bilby's
gaoler to have kept him in prison for an indefinite time, and to
have made him pay an indefinite amount. [Real J. : They
first impose a fine, and if he does not pay they make an order
for his commitment, but before that is carried out, the amount
he has to pay has to be specified in the warrant of commitment.]
I object to all the findings of the justices, and maintain that the
statute of Geo. IV. did not apply, and that there was no evidence
under it of intimidation.
Griffith, Q.G., A.G. : The Solicitor-General and myself are here
because this case raises matters of great importance. It raises the
question of whether a statute was in force in the colony which
was supposed to be in force, and under which persons had been
deprived of their Uberty. If the statute was not in force, the
222 QUEENSLAND JUSTICE OF THE PEACE.
BiLBT i>. Hartley sooner that was made clear the better. Certainly we are not in
AND Others. . ■ •■ , .
court to discuss a question of form in connection with this con-
viction. We are here on behalf of the Crown to assist the court
to come to a conclusion on the matter, and not on behalf of the
respondent. [Harding J. : If this conviction is bad in form,
you may never get to the other question. The Chief Justice :
I doubt very much whether you could amend the conviction under
the statute in this case.] The rule raised a question of great
importance, and we are here to meet it, but now there appears
to be a technical defect on the face of the conviction. [Hahding
J. : All the sentences under this Act have expired a long time
ago, and there cannot be any person suffering under it now.]
Lilley : The Rockhampton men were not sentenced under
that Act, but under common law.
Harding J. : There was a great parade at first of this sort
of thing, and I looked at Geo. IV., but I did not use it in any
shape or form. I always carefully avoid anything which may
possibly burn my fingers.
The Chief Justice : If it turns out that Geo. IV. is touched
upon by anyone, if necessary we will decide it ; but we may never
get to it.
The Attorney-General : On the question of amendment, pro-
vision was made in ss. 213, 214, and 223 of The Justices Act to
correct convictions and impose a proper penalty. Section 223
laid down that " when on a conviction there is some excess which
may (consistently with the merits of the case) be corrected, the
conviction shall be amended accordingly, and shall stand good
for the remainder." The amount which the justices had power to
impose was not more than £5, and there was some doubt whether
it must not be less than £5. Under the scale given in s. 174 it
must be less. [The Chief Justice : We are inclined to think
that the amount ought to be reduced to £4 19s. llfd. At present
we relieve of the burden of the question of excess.] I do not
pretend that there is no excess. [The Chief Justice : No, that
is clear. The action of the justices would have exposed the man
to six months' imprisonment instead of three. The fine is a
most excessive one, and ought to be reduced to £4 19s. llfd.]
Then the main question is whether the statute is in force in the
colony. I contend that the statute is in force. It had been
suggested at one time that it appUed only to the rules of practice
in the Court. [The Chief Justice : It was suggested by Lord
CRIMINAL REPORTS, 1860—1907. 223
Chelmsford, but never seriously argued. It was not even an obiter ^^^^'^ «. Hartley
dictum.] The administration of justice had gone on since that,
and all the laws of England relating to property and to criminal
matters, so far as they could be applied to the conditions of the
colony, are in force here. Blackstone, in his definition of those
statutes, said : " That so much of them remained in force as were
apphcable to the circumstances and conditions of the colony in
which it was sought to apply them." 6 Geo. IV., c. 129, is a
statute applying to criminal offences'; 9 Geo. IV., c. 83, which
repealed many Acts relating to workers, extended such statutes
as were applicable to the condition and circumstances of the
colony. [Haeding J. : All the labour laws against labour were
repealed, but not this one.] My contention is that 6 Geo. IV.,
c. 129, being a law relating to the liberty of the subject, and for
protection of the subject from violence to his body, and what was
akin to intimidation in my mind, is one applicable to the con-
ditions and circumstances of the colony. In the case of Regina v.
Druitt, 10 Cox C.C. 592, Lord Bramwell said " that there was no
right in this country under our laws so sacred as the right of
personal liberty. No right of property or capital, about which
there had been so much declamation, was so sacred or so carefully
guarded by the law of this land as that of personal liberty.
They were quite aware of the pains taken by the common law —
by the writ, as it was called — of habeas corpus, and supplemented
by statute, to secure to every man his personal freedom, that he
should not be put in prison without lawful cause, and that, if he
was, he should be brought before a competent magistrate within a
given time, and be set at Uberty or undergo punishment. But
that liberty was not liberty of the body only. It was also a
liberty of the mind and will ; and the liberty of a man's mind and
win to say how he should bestow himself and his means, his
talents, and his industry, was as much a subject of the law's
protection as was that of his body. Generally speaking, the way
in which people had endeavoured to control the operation of the
minds of men was by putting restraints on their bodies, and,
therefore, we had not so many instances in which the liberty of
the mind was vindicated as was that of the body. Still if any
set of men agreed among themselves to coerce that liberty of
mind and thought by compulsion and restraint, they would be
guilty of a criminal offence, namely, that of conspiring against
the liberty of mind and freedom of will of those towards whom
they so conducted themselves." And he laid it down as clear
224 QUEENSLAND JUSTICE OF THE PEACE.
BiLBTD Hartley ^nd undoubted law " that if two or more persons agreed that they
AND OtHEBS. 1 • j. j.1. j. tt
would by such means co-operate together against that hberty
they would be guilty of an indictable offence." That was the
common law of the offence which had been re-enacted by 9 Geo. IV.
c. 83. If any serious argument is to be made that the language
used is not intimidation, I refer to this ease. The language used
is stronger than any previously reported. No decent person
could remain on the station and submit to it. [Real J. : If it
were applied to me, and, there were a great number there, I should
provide myself with a pistol. I would rather pay the 6s. lOd.
than have it applied to me.] Most men would prefer to pay
6s. lOd. rather than submit to such language. This was a criminal
offence under 6 Geo. IV., c. 129, and re-enacted as such by 9 Geo.
IV., c. 83. The former statute was equally applicable to New
South Wales as to any other place. It was an Act for the liberty
of the subject, and, therefore, came within the words of the
statute which brought such laws into force as were applicable
to the circumstances and conditions of the colony. [The Chief
Justice : I think the offence comes under the 3rd section of the
Act, and would affect the mind of any reasonable being.] Under
that section, it was held in O'Neil v. Longman, 4 B. & S. 376, that
asking a man whether he intended to remain in a shop after the
others had gone out on strike, and have his name circulated
throughout England, was an offence. [The Chief Justice :
Very likely. In the old days tradesmen had travelling cards
allowing them to visit town after town until they gradually
worked their way to London. Such a thing would seriously
affect them. There is nothing either on the face of the statute
or in the circumstances of the colony to make 6 Geo. IV. excep-
tional.] No. It is an Act that applies to all trades for the
protection of property, and therefore comes within the laws of
the colony. On the merits the matter entirely fails.
Byrnes S.G. : If the statute 9 Geo. IV., c. 83, came into force
in New South Wales, and remained in force in that colony, it
would of course have come into force here by virtue of The
Constitution Act, s. 33. In Webb's Imperial Law and Statutes,
p. 4, a dictum of Blackstone is quoted. " Colonists carry with
them only so much of the English law as is applicable to their
own situation and the condition of an infant colony ; such, for
instance, as the general rules of inheritance, and of protection
from personal injuries." [Habding J. referred to Yeap Cheah
Neo V. Ong Cheng Neo, L.R. 6, P.C. 381.] This was a statute
CEIMINAL EEPOETS, 1860-1907. 225
designed to protect men from intimidation and violence, and it Bilby «. Hartley
111- 11- .1 T *''i> Othebs.
would be introduced into the colony with civilisation. [Haeding
J. : A considerable portion of criminal laws are statutory, and
can be applied to the colonies. Those in reference to the king,
for instance. If there can be special statutes provided for the
king, why not provide them for individuals ?] That argument
is unanswerable.
Lilley, in reply : To decide whether 6 Geo. IV., c. 129, was
applicable to the colony, we must look at the state of New South
Wales at the time it was passed. From the Acts quoted I will
show that the condition of labour in that colony then was entirely
different to what it was in England. At that time it was not
competent in New South Wales for employers to engage appren-
tices until they passed an Act for that purpose. That Act
happened to come into force only eight days before 9 Geo. IV., 13,
was passed in England. The English statute was passed to remedy
the previous laws which were found to be inapplicable to the
state of affairs then existing amongst tradesmen. [Habding J. :
Would not the same observations apply to the Magna Charta ?]
No. Magna Charta protected all England, "without applying
to any particular class. 6 Geo. IV. was passed to deal with
labourers only. By its preamble it could be seen it was specially
intended for local purposes. In 1828 the majority of the work-
men in New South Wales were convicts. [Haeding J. : Surely
you don't contend that when New South Wales was made free
people could only come to the colony subject to convict laws ?]
Would this Act then relate to a combination amongst criminal
classes ? [Hakding J. : No. When 9 Geo. IV., 83, was passed,
it applied to free people.] 9 Geo. IV., No. 9, which was passed in
New South Wales years after No. 6, was the first Act to deal with
labourers in the colony. In the preamble it says : " Whereas
as many Acts are not applicable to New South Wales." That
shows what the people thought then. [Real J. : 9 Geo. IV. ,9,
deals with the relations of masters and servants, and not with
labourers' relations amongst themselves. [The Chief Justice :
Then that Act would not help us much.] 9 Geo. IV., No. 8,
provides for employers engaging apprentices in New South Wales.
If people brought the laws of England with them, what was the
use of passing this Act ? [Real J. : You can hardly make out
that the laws do not apply to the colony when the legislature
states they shall apply.] It has been held that before you can
say 9 Geo. IV., 83, applies, you must look at the circumstances of
226 QUEENSLAND JUSTICE OP THE PEACE.
BiLBT u. Haktley ti^e colony. Otherwise, you cannot say tliat the Act is appHcable.
That is the ruling in the Penang case of Yea'p Cheah Neo v.
Ong Cheng Neo, L.R. 6 P.O. 381. I contend that the circum-
stances of the colony were so entirely different at that time, that
the old English Act could not apply. The first Masters and
Servants Act in England was 9 Geo. IV., c. 9. [The Chief
Justice : The Masters and Servants Act before that was the
whip.] 9 Geo. IV., c. 83, also dealt with masters and servants,
and absconders, besides dealing with servants against servants.
The very necessity of passing an Act like 8 Geo. IV., shows that
No. 9 did not deal with the colonies. In Whicker v. Hume,
129, 7 H.L., 124, it was held that the statutes of mortmain did
not apply to the colony of Grenada, there being no special circum-
stances therein for such application ; and it was also held that
9 Geo. IV., c. 83, had not local appUcation, although the subse-
quent opinions on this point went the other way. Again
6 Geo. IV., c. 129, prescribed a remedy in certain courts which
had not similar courts in New South Wales.
Sir S. W. Griffith : 9 Geo. IV. empowers the colonies to estab-
lish courts of quarter session.
Lilley : But that was afterwards. [Sir S. W. Griffith : Courts
of quarter sessions were authorised to be estabHshed in New
South Wales by 4 Geo. IV., c. 96. [Real J. : It is quite clear
that there were courts of quarter session in the colonies before
6 Geo. IV.] In another case, that of the Attorney-General
V. Stewart, 2 Merivale 143, mortmain statutes were held to apply
entirely in England. I contend that 6 Geo. IV., c. 129, was
specially passed for England, and at the time of 9 Geo. IV., c. 83,
was never intended to apply, and did not apply to New South
Wales. That is borne out by the Penang cases, where the Judges
held that the statutes particular to England did not become part
of the Penang laws, because the common law had been introduced
into them. [Haeding J. : To show that 6 Geo. IV., c. 129,
cannot be applicable to New South Wales, you have got to prove
that only convicts were working there when the Act was passed.
There were sailors going to that colony then. How about them ?]
6 Geo. IV. does not apply in any way to sailors. [The Chief
Justice : I take it the position is this. 6 Geo. IV., c. 129, was
passed for the condition of things existing in England at that
time. The same condition of affairs was not existing when 9
Geo. IV., e. 83, was passed ; but if the circumstances arose which
made 9 Geo. IV. applicable in New South Wales, it would be
CEIMINAL REPORTS, 1860-1907. !i27
applicable for all time unless repealed.] I contend that 6 Geo. IV. ^'''''* «. Habiley
^ -■ AND UTHEIta,
-was passed purely for local circumstances. If those same circum- —
stances now apply in Queensland, but did not apply at the passing
of that Act, that Act cannot apply to them. [Harding J. : As
I said before, the same observation would apply to Magna Charta.]
If the Chief Justice's proposition is good, the mortmain laws in
Whicker v. Hume, which were held not to apply to the particular
circumstances of Grenada, would apply. [The Chief Justice :
They could not apply here, because there are no monasteries or
any great establishments eating up the land. That evil went to
the root of the English Reformation. People, as the people,
wanted to get hold of the land belonging to the monasteries.
If general laws were passed in England, and the circumstances of
the laws afterwards became applicable to the colonies, would not
9 Geo. IV., c. 83, also become applicable ?] I submit not.
[The Chief Justice : If I understand you aright, you contend
that if the circumstances in New South Wales were not applicable
to 9 Geo. IV., c. 83, when passed, they cannot be applicable now ?]
No. Several laws in Forsyth's Cases on Constitutional Law
have been held not applicable to the colonies, amongst them even
penal Acts. In Astley v. Fisher, 6 C.B., 572, Maule J. held that
■9 Geo. IV., c. 83, did not import into the colonies all English
laws. If any laws but those applicable to the colony at the
time they were passed could be imported into our code, it would
not be possible to know the law of the land. [The Chief Justice :
That is the way with all laws. The law does not arise until the
offence is committed.] Yes ; but you know what the law is. If
6 Geo. IV., c. 129, can now be revived and sprung upon us at a
moment's notice, we are living in a very risky state of affairs,
and the sooner the Court decides the point the better. With
respect to intimidation, threats were used but they did not
amount to intimidation. Connor v. Kent, Gibson v. Lawson,
Gurran v. Treleaven, (1891), 2Q.B. 545.
Conlan followed.
The Chief Justice : This is a rule calling upon the justices The Chief Justice
and Henry AUis, to show cause why an order should not be made
directing that the conviction or order made by the justices and
others at Blackall, in a certain complaint, in which one Allis
was complainant, and Bilby was defendant, should not be quashed
on the following grounds : — That the justices had no power or
authority (1) to impose or order payment of a fine ; (2) to impose
or order payment of a fine with alternative imprisonment ; (3) to
The Chief Justice
228 QUEENSLAND JUSTICE OP THE PEACE,
BiLBY u Hartley order the payment of a sum of 7s. 8d. for costs ; (4) to order the
AND UTHGBS.
payment of the sum of £15 158. costs of witnesses travellings
expenses ; (5) to order payment of the fine of £10 lOs; ; (6) to
impose the penalty and imprisonment ordered ; (7) that the-
statute 6 Geo. IV., c. 129, is not in force in the colony of
Queensland ; (8) that there was no evidence before the justices
of intimidation under the lastmentioned statute. Well, upon the
question of the various amounts, there is no doubt that it is
conceded that the magistrates imposed an excessive fine, which
might have exposed the defendant Bilby to excessive imprison-
ment ; because if the statute under which the complaint was-
undoubtedly laid is in force in the colony, the term of imprisonment
is limited to three months, whereas the fine imposed by the
magistrates, if unpaid, would have subjected Bilby to six months'^
imprisonment ; as it was, the Magistrates kept the term of
imprisonment within the term imposed by the statute 6 Geo. IV.,
but there was undoubtedly an excess in the amount of the fine
imposed. That being conceded, an application was made by the
Attorney- General, under The Justices Act, for leave to reduce the
excess so as to bring it within such an amount as would leave a.
possible or alternative punishment of only three months, and
so, in fact, impose the magistrates' imposition of only three
months' imprisonment. We see no reason why we should not
concede that application, and reduce the penalty imposed by the
justices to £4 19s. llfd., which will then allow the order of the
justices imposing three months' imprisonment to be upheld.
Of course that includes everything — both penalty and costs —
and reduce the whole to one sum of £4 19s. llfd. That, as I
said, would allow the order of the justices to be upheld, if on the
remainder of the case we think the prosecution is sustainable.
Assuming that the Act 6 Geo. IV., c. 129, under which the
prosecution was begun, continued, and finished — assuming that
to be the law for the moment — I will first mention the question
of the substantial merits of the case. The facts are too disgusting
to be recited from the bench. The question of intimidation arises
under the s. 3 of 6 Geo. IV. It is provided under this particular
section —
"that from and after the passing of this Act, if any person,
shall by violence to the person or property, or by threats
or intimidation, or by molesting or in any way obstructing
another, force or endeavour to force any journeyman manu-
facturer, workman or other person hired or employed in.
any manufacture, trade, or business, to depart from his
CEIMINAL EEPORTS, 1860-1907.
229
hiringj or prevent or endeavour to prevent any journey- Bilby v. Habtlby
man manufacturer, workman, or other person not being hired *''" ^™'^°^'
or employed from hiring himseK to, or accepting work or employ- The Chief Justice
ment from any person or persons ; or if any person shall use or
■employ violence to the person or property of another, or threats
•or intimidation, or shall molest or in any way obstruct another
ior the purpose of forcing, or inducing such person to belong to
any club or association, or to contribute to any common fund,
or to pay any fine or penalty, or on account of his not belonging
to any particular club or association, or not having contributed
or having refused to contribute to any common fund, or to pay
any fine or penalty, or on account of his not having complied
or of his refusing to comply with any rules, orders, resolutions, or
regulations made to obtain an advance or to reduce the rate of
wages, or to lessen or alter the hours of working, or to decrease or
alter the quantity of work, or to regulate the mode of carrying
on any manufacture, trade, or business, or the management
thereof ; or if any person shall by violence to the person or pro-
perty of another, or by threats or intimidation, or by molesting
■or in any way obstructing another, force, or endeavour to force
aiiy manufacturer or person carrying on any trade or business to
make any alteration in his mode of regulating, managing, conduct-
ing, or carrying on such manufacture, trade, or business, or to
limit the number of his apprentices, or the number or description
of his journeyman workmen, or servants ; every person so offering,
■or aiding, abetting, or assisting therein, being convicted thereof
in manner hereinafter mentioned, shall be imprisoned only, or
shall or may be imprisoned and kept to hard labour, for any
time not exceeding three calendar months."
I think, the information was that the threats or intimidation were
used on account of Henry AUis the complainant not having
■contributed to a common fund. It appears that a common fund
iad been formed for the purpose of making a provision or in some
way providing for the comfort of some men who had been com-
mitted on a criminal charge. We can hardly fail to see that
these troubles arose out of the recent unhappy disturbances
between labour and capital as they are repeatedly called. We
sit here to take no part on either side, whichever way our sympa-
thies may lie with one party or the other. It is not of course
for us to make -any display of sympathy, nor to be influenced
by any in our determination on what is really presented to the
Court as a dry question of law. Our duty is limited entirely to
that. Whichever way our decision goes, it implies sympathy
with neither one party nor the other in respect to their relations
one to the other, as capital or as labour. I will deal with the
questions arising out of the trial, on the supposition that this
statute of 6 Geo. IV., c. 129, is in force in the colony. The
280 QUEENSLAND JUSTICE OF THE PEACE.
UiLBY V. Hartley trouble appears to have arisen in consequence of Allis not having
AKD Othebs. contributed, or refusing to contribute, 6s. lOd. to a common fund
The Chief Justice — a fund which was really got up to give some help to men who-
are now in gaol on a criminal charge. Looking at the language
on the depositions, which is much too foul to pass through the
mouth even of the Judge, whose position sometimes necessitates
that he should recite such language, I think it is not necessary
for me to recite it now. There is one part sufficient, without
touching upon the fouler part, to sustain the charge (supposing
the statute 6 Geo. IV. to be in force) that is : that the man
was threatened if he did not contribute this sum of money he
would be " chucked " out. We know very well that that means
he would be thrown out and possibly injured if he did not submit
to this dictation. Well, I think, that would be quite sufficient
in itself to inspire in a man of reasonable strength of mind some
degree of fear or discomfort, or a sense of an attempt being made
to coerce him to do that against which his mind or his reason
might rebel. I think it is perfectly clear that, upon the facts of
the case, there was sufficient material to justify the magistrate in-
coming to the conclusion that intimidation had been given.
That being so, on the merits, the rule would have to be dismissed,
but there is a further question of importance in the case, and I
need not, perhaps, hesitate to say that a very great deal of clamour
has been raised with regard to the character of the Act under
which this prosecution was begun and ended. This is the Act
6 Geo. IV., c. 129. Of course, if that Act is not in force in the
colony the whole prosecution had no foundation, and the rule
would have to be made absolute. Without going into the earUer
Acts applicable to New South Wales, which, I think, it would be
quite unnecessary for my part to go into, I think it depends —
the operation of the question whether this Act is in force in this-
colony depends — upon two things. First, what is the meaning of
9 Geo. IV., c. 83 ? What law did it import into this colony,,
and is there anything in 6 Geo. IV. that is repugnant to the existing
state of circumstances in the colony, or was so when 9 Geo. IV..
was passed, that it was impossible to show that the legislature
could contemplate the importation of 6 Geo. IV. into the law of
New South Wales ? 9 Geo. IV. provides —
" Provided also, and be it further enacted, that all laws and
statutes in force within the realm of England at the time of the
passing of this Act (not being inconsistent herewith, or with any
charter or letters patent, or order in council which may be issued
in pursuance hereof) shall be applied in the administration of
CEIMINAL EEPORTS, 1860-1907. 231
justice in the Courts of New South Wales and Van Die man's Bilby v. Habtlby
Land respectively, as far as the same can be applied within the ^'^^ Othbrs.
said colonies." The Chief Justice
and so on. Now, many years ago, a very eminent Lord Chancellor
hinted that the words " applied to the administration of justice,"
might possibly allude to the appUcation of this statute to the
practice of the Courts, but would merely import into New South
Wales the practice of the English Courts. Well, my understanding
— and I speak with deference in criticising so eminent a Judge —
my understanding of the words " administration of justice,"
implies that not only the practice of the law, but the substantive
law, and the practice is intended to apply. I think, therefore,
that these words imported not merely the practice of the Courts,
but the actual substantive law of England, so far as it applied to
the circumstances of the colony. That means, to my mind,
that if the circumstances of the colony are such, or the
circumstances of a particular case are such that the law
caimot be appUed, it obviously should not be applied. In that
case, the law of England — the substantive as well as the practical
law — would cease to have any effect with respect to the particular
case within the colony. At all events, whatever the circumstances
of the colony might be at the time of the passing of 9 Geo. IV.,
if the Act 6 Geo. IV. is not inconsistent with those circumstances,
and if it could be appUed, then probably it must be applied in the
administration of justice. I am inclined to think myself, and
probably it is important in connection with this case, that
although the circumstances existing at the passing of 9 Geo. IV.
might not make 6 Geo. IV. appUcable, or it might be inappHcable
to the existing circumstances, still, if in the progress of Hfe and
society circumstances so altered within the colony that it would
apply, or it might be appUcable, then, I think, it would have to
be applied, because there are many things which legislatures do not
legislate for immediately. They legislate not only for immediately
existing evils, but for prospective evils that are Ukely to arise.
Now there is one of the statutes which have been referred to,
which uses the words " to prevent certain misconstructions." If
these misconstructions did not exist in the colony of New South
Wales after the passing of that Act, and have not arisen, the Act
would of course apply. In fact, a statute is passed to-day, but it
speaks for all time until the legislature sees fit to repeal it, change
it, or modify it. • A statute is not passed for a day ; it is passed
for all time until the legislature sees fit in its wisdom or in its
232 QUEENSLAND JUSTICE OP THE PEACE.
BiLBY V. Haetley folly, to repeal it, to modify it, or to re-enact something else in
AND Othehs. .^^ ^lo^QQ^ So long as it is in the Statute Book, if the circumstances
The Chief Juetiee to which it might apply or ought to apply arises, it is our duty,
sitting as a Court here, to apply it. I think the question then is :
Is there anything in 6 Geo. IV. so absolutely inconsistent with the
circumstances existing at the present time, that its provisions
cannot be applied in the administration of justice ? On the face
of it, looking at this Act — which seems to have repealed all the
existing Acts affecting labour combinations, and to have passed
one general statute — I may say that I cannot resist the conclusion
that, at aU events, in respect to this particular offence, there is
nothing in the statute inconsistent with its application in this
colony. On the contrary, it seems to me to apply to the circum-
stances of this particular case. I may say in dealing with statutes
brought into force by the operation of 9 Geo. IV., c. 83, some
portion of the statute may not apply, and some other portion
may apply. Time or change of circumstances may sweep away
the operation of a part of the statute, or time may bring
into operation other parts, or may retain other portions of the
statute in force, notwithstanding the lapse of time. Therefore,
I am not prepared to say that the statute obviously is not intended
to apply to the colony. The mere fact that you can pick out
from the centre some few words which would have laid the
foundation for prosecutions of this sort, would probably not be
sufficient to justify them, but looking at the whole thing there is
nothing in this Act, in its object, or in its character, that is in any
way inconsistent with the appUcation of some portion of it,
whilst in regard to other portions, one might disregard its appUca-
tion. There is nothing on the face of it, that I can see, that would
make 6 Geo. IV. inapplicable. Therefore, by the operation of
9 Geo. IV., c. 83, I think it has been brought into force in the
colony, and it remains in force, and that the prosecution was well
founded. I think, therefore, there ought to be reduction with
regard to the money, reduction of the excess, and the conviction
ought to be upheld. On the two questions whether the sub-
stantive offence was proved, and whether that offence was against
the law of the colony, I think they are settled by the operation of
these two statutes here. With regard to the question of excess,
I think the complainant ought to have his costs. It is qiiite
clear he was compelled to come here, and that on the other part
of the case the Crown ought to have their costs ; so that there will
be two sets of costs.
CRIMINAL REPORTS, 1860-1907.
233
Harding J. : I agree in great part with the judgraent of ^^^^^ «. Hartley
mi /^i •tT't-rti* 1 AND UTH£.nSt
ihe Ohiei Justice, but I defer expressing my opinion as to the
application of English law to this matter. I think the statute Harding J.
9 Geo. IV., passed a mass of laws for New South Wales, which were
to be extracted from the larger mass of the laws of Great Britain
and Ireland, so far as they were appUcable to the colony. Secondly,
I think that the laws that could be taken out from the Statute
Book and the Common Law at the time of the passing of that
Act, are and were at once, and have ever since been the law of
New South Wales. I don't think that if any part of the statute
law of England was not at that time brought in by 9 Geo. IV.,
and at once became appUcable if the cause arose, that it, so to
speak, lay dormant and became law at a future time. I would
put it this way : that by 9 Geo. IV. all EngUsh law applicable
to the colony at once attached, and although the occasion for the
use of it might not arise for ten years, twenty years, or fifty years,
still it was there as the sanction for the ^ionduct of the people
thereafter. I consider that the moment 9 Geo. IV. was passed
it became part of the law, and has ever since remained law as a
sanction for the good conduct of the people. The rule must be
discharged in the terms mentioned by The Chief Justice.
Real J. : I have nothing to add to the judgment of The Chief Real J.
Justice. I desire to offer no opinion on the question raised by His
Honor, because I have not sufficiently considered it. To my
view the circumstances of the colony at the time of the passing
of 9 Geo. IV. was clearly such as would render 6 Geo. IV. capable
of being applied. Consequently, the effect of the statute 9 Geo.
IV., would be such as to apply that law. It was not sufficiently
argued, and I have not sufficiently considered it to offer any
opinion on the point thrown out by The Chief Justice as to whether,
if the circumstances of the colony had been such that 6 Geo. IV.
was not applicable at the year of the passing of 9 Geo. IV., an
alteration in them made it applicable, and we could hold it to be
applicable. It was not necessary to consider that question in
this case, and it has not been argued and I have not considered
it sufficient to express an opinion. In every other respect I
concur in the opinions expressed in the judgment of The Chief
Justice.
LiLLEY C.J. : The excess is to be reduced with costs. The rest Lilley C J,
of the rule is to be discharged without costs. I agree that there
was not sufficient time to consider the point I raised. With
234 QUEENSLAND JUSTICE OF THE PEACE.
BiLBY 1-. Hakxley regard to that it is a very fine point, and my opinion, no doubt,
AKD OtHEBS.
Lilley C.J.
on that, will be taken as academical.
Solicitor for appellant : A. J . Thynne.
Solicitor for repondents : Crown Solicitor.
[Full Cotjkt.]
RAWLINGS V. HALY AND ANOTHER.
1 4 g.L.J. 160. — Note.— 29 Vic, No. 5, s. 26, is repealed, see now ss. 22, 469, and
^ 476 of^Criminal^Code.S See>lso;^ Black v. Turner (6 Q.L.J. 153, post), Keable
l^^ V. Clancey (3 Q.J.P.R. 206, 1909 S.B.Q. 345).]
1892. Injuries to Property Act of 1865 (29 Vic, No. 5), s. 2Q—Bona fide
ilai'cJi. claim of title — Jurisdiction of justices.
itZte|/ G.J. jj agreed to sell land to C. C. paid part of the purchase money. About three '
Real J. weeks afterwards, but before the whole of the purchase money had been paid, R.
began to remove the wire from the fence surrounding the land agreed to be sold.
C. laid an information against R., under s. 29 of The Injuries to Property Act of
1865. It appeared from the evidence that there was a dispute as to certain of
the terms of sale. C. said K. was entitled to take away a crop of potatoes. R.
said he was entitled to take away the improvements, and that he removed the
wire under the bona fide belief that the property was his, and that he was entitled
to do so.
R. was convicted and ordered to pay a fine of £5, with £7 for damages, and
£3 3s. for costs, or in default of payment, to be imprisoned for three months.
Held, that this was a bona fide claim of right, and that R. should be relieved
of the order for fine and imprisonment.
Motion, made at the February Sittings of the Full Court,
to make absolute an order calhng upon Charles Richard Haly,
Pohce Magistrate at Dalby, and James Clarke of Dalby, to show
cause why the conviction of William Rawlings, under the 26th
section of The Injuries to Property Act of 1865 (29 Vic, No. 5),
should not be quashed on the grounds : (1) That there was no
evidence to support the conviction. (2) That the evidence showed
that the defendant acted under a bona fide claim of right. (3)
That the said Charles Richard Haly had no jurisdiction to try
or decide the matter of the said complaint, as defendant raised a
bona fide claim of title in himself as against the complainant to
the fence alleged to have been destroyed, and to the land upon
which the same was situate, and the conviction involved a decision
as to such title.
CRIMINAL EEPORTS, 1860-1907. 235
Perske, for appellant, moved the rule absolute. Hawlings v. Hali
AND ANOTHEU.
Wilson, for respondent Clarke, appeared to show cause.
Wilson took a preliminary objection that defendant had not
exhausted all his remedies. The conviction was under s. 26 of
The Injuries to Property Act, and remedy was by way of appeal to
the District Court, as provided by s. 71. On the merits, he
contended the question of title was for the justices as a matter
of fact. The justices have decided that it is not a bona fide claim
of right, and the Court AviU not interfere. He referred to Reg. v.
Walker, 4 Vic. Rep., (L.) 452 ; Reg. v. Blackburn, 32 L.J. (M.C.) 41,
46 ; Paley v. Birch, 16 Law Times Rep. 410 ; and Stone on Justices
of the Peace, p. 72.
Perske referred to Paley on Convictions, p. 144. " Whenever
the title to property is in question, the exercise of a summary
jurisdiction by justices of the peace is ousted." He quoted in
support Reg. v. Burnaby, 2 Ld. Ray., 900 ; Reg. v. Huntsworth,
33 L.J. (M.C.) 131 ; and Reg. v. Cridland, 27 L.J. (M.C.) 31.
Decision was reserved ; prisoner meanwhile being allowed
out on bail, himself in £40, and two sureties in £20 each, or one
surety in £40, with condition that prisoner surrender himself
into custody if rule discharged. Recognizance to be taken before
any justice of the peace.
At the March Sittings of the Full Court, the following judgment
was delivered : —
LiLLEY C.J. : This is an appUcation to quash a conviction Lilley C.J.
against one WiUiam Rawlings, under the statute against the
maUcious destruction of property. The charge against him was
that he destroyed maliciously a quantity of fencing, the property
of the complainant, one James Clarke, and the Magistrates
convicted him, and ordered him to be imprisoned, in default of
payment of a fine of £10, for three months. He was imprisoned,
and at last Court the Court gave him bail. Therefore, if he has
suffered, it has been from his own obstinacy, not from the action
of the Courts. The ground on which the rule is sought — and it
was raised at the trial — is, that Clarke alleged that he had a bona
fide claim of right. The circumstances are somewhat remarkable.
It appears that the fence which Clarke was charged with destroy-
ing stood between two properties which belonged to the defendant.
There was a dispute whether the fence stood upon his own land or
upon the other piece of land which he had agreed to sell to the
236 QUEENSLAND JUSTICE OF THE PEACE.
Bawlings u. Halt complainant Clarke. It appears that there had been transactions
■ between them of this kind. There is no doubt that there was
Lilley C.J. a contract in which the defendant agreed to sell to Clarke a piece
of land adjoining his own. Part of the purchase money was
paid to E-awlings, the defendant, and then there was a dispute
as to certain of the terms. Clarke said he was entitled to take
away a crop of potatoes from the allotment which he had sold.
The defendant said he was entitled to take away the improve-
ments. It is clear that on the day for the completion of the
contract, by the payment of the full amount, the purchaser Clarke
was a defaulter. Then Rawlings began to remove the wire from
the fence, and that is the offence with which he was charged before
the Magistrates. He set up the claim that he was entitled to
take it away as part of the improvements, and the evidence
was taken on which the Magistrate decided that it was not a
bona fide claim of right. Beyond the fact of his attempt to remove
the fence, there was no evidence of any want of bona fides, and
on the other hand the admitted matters — the non-payment
of the purchase money, the right to move a crop of potatoes,
and other little circumstances — all went to show that there was
between the parties matter of dispute, and the question is, if I
may use a familiar term, was this a mere bogus assertion, or was
it a bona fide claim and assertion of his right to the improvements ?
What object could he have ? What could he secure by these
proceedings ? If the contract was " off " entirely by reason of
Clarke's default, there was nothing to be gained by the removal
of the fence. If, on the other hand, the property was still within
the grasp of Clarke, and he could assert his right under the con-
tract under which he was admittedly a. defaulter, he had half the
purchase money, and might have recouped himself for any injury
in consequence of Rawlings taking the wire from the fences.
Upon the whole we think it ought to have been held by the Magis
trate there was a bona fide claim of right, and that this man should
be relieved of the order for fine and imprisonment. The con-
viction will, therefore, be quashed, vnth costs against Clarke.
Harding J. Haeding J. and Real J. concurred.
Eeal.L
Rule absolute accordingly, with costs.
Sohcitor for appellant : E. Winter.
Solicitors for respondents : Wilson, Newman-Wilson <fe
Hemming.
CRIMINAL REPORTS, 1860-1907.
237
[Brisbane Criminal Sittings.]
REGINA V. HORROCKS.
[4 Q.L.J. 218.— Note.— Sec. 64 of 31 Vic, No. 13, is repealed, see now s. 10 of
Criminal Law Amendment Act of 1894 (58 Vic, No. 23). which is not identical
with the repealed section.]
Criminal law — Evidence — Untrue representation — Evidence and 1892.
Discovery Act of 1867 (31 Vic, No. 13), s. 64:— Burden of ^^th^^ust.
proof. Harding J.
H. was arrested on a charge of murder. He asked the arresting constable, B.,
whether human blood could be distinguished from any other blood. B. said
" Yes, it could."
Held, that the representation was untrue, and any confession or statement
made by the prisoner subsequent to such representation could not be admitted
in evidence against the prisoner. A detective untruly told the prisoner the
nvurderer could be identified.
Held, that no conversation with the prisoner subsequent to such representation
could be received under s. 64 of The Evidence and Discovery Act. The onus is
on the Crown of rebutting the presumption that the subsequent statements of
the prisoner were induced by the representation.
Information against Francis C. Horrocks for murder.
Power prosecuted for the Crown. Lilley and GonlanYSox the
prisoner.
On the first day of the trial Detective Grimshaw gave a con-
versation with the prisoner, which was received. He then
deposed that he told the prisoner " the murderer can be identified."
This being an untrue representation, further conversation was
rejected. On a later day of the trial, Boyle, the arresting constable,
deposed that, before the arrival of Detective Grimshaw, the
prisoner and he had a conversation ; that the prisoner asked
him, " Can they distinguish human blood from any other blood ? "
and he answered " Yefe."
Lilley objected to the reception of any subsequent conversation
on the ground that this was an untrue representation.
Harding J. upheld the objection pending an answer from a
scientific witness.
Harding J.
288
QUEENSLAND JUSTICE OP THE PEACE.
Begina v.
bobbocks.
Harding J.
Robert Mar, the Government Analyst, deposed in answer to
a question from Harding J. : "If the question as asked — Can
they distinguish human blood from any other blood '! -yes, is
not a true answer according to the present state of science."'
It was in evidence that Boyle's untrue representation preceded
the statements of the former to Detective Grimshaw.
lAlley thereupon moved that so much of the evidence already
given as went to prove a confession made by the prisoner after
the above statement made by Boyle, should be struck out
from the Judge's notes on the grounds that there was a false
statement amounting to a representation, and that, therefore,
any confession after that must be deemed to have been induced
by it, unless evidence to the contrary existed, and there was no
evidence. Evidence and Discovery Act, s. 64.
Power : There is nothing to show that the subsequent state-
ments were induced by Boyle's statement.
Harding J. : It would be well if all constables and others in
control of a prisoner would give the statutory caution to him
upon taking him over from another's charge. This is especially
necessary here, as s. 64 of The Evidence and Discovery Act is
peculiar to Queensland. I hold that such evidence must be
struck out as occurring subsequent to an untrue representation,
and that the onus is thrown on the Crown of rebutting the pre-
sumption that the subsequent statements of the prisoner were
induced by the representation.
Solicitor for prisoner : E. W. Goertz.
[Brisbane Criminal Sittings.]
REGINA V. FRANZ.
]892.
1st September.
Harding J.
[4 Q.L.J. 219.— Note.— 50 Vic, No. 14, s. 3, is repealed, see now s. 656 of Criminal
Code.]
The Offenders Probation Act of 1886 (50 Vic, No. 14), s. 3— Two
informations presented simultaneously — Previous conviction.
Two informations were presented against F. for cattle stealing. F. pleaded guilty
to both, and asked the extension of The Offeiiders Probation Act. He was sentenced
CRIMINAL REPORTS, 1860-1907.
239
to eighteen months' hard labour on each information, the sentence being bus- Eegi.na u. Fbanz.
pended on the first.
Held, that as he was convicted under the first charge, the benefit of the Act
could not be extended to the offence 6ontained in the second information.
Information against Franz for cattle stealing.
Power prosecuted ; Rutledge, for prisoner.
Two informations were presented against the prisoner for
cattle stealing. He pleaded guilty to both.
Rutledge called evidence of character and asked that the
prisoner might have the benefit of The Offenders Probation Act.
The prisoner had not been previously convicted.
Harding J. : Here are two informations. If he is sentenced
on the first he is convicted, and how can I extend the benefit of
that Act to him on the second. Sentence — eighteen months'
imprisonment with hard labour on the first information, to be
suspended upon prisoner entering into his own recognizance in
£80 before a Justice of the Peace, under the terms of The Offenders
Probation Act ; eighteen months' imprisonment with hard labour
upon the second information.
Solicitors for prisoner : Atthow, Bell <& Stumm.
Harding J
[Fttll Court.]
REGINA V. DUNCAN.
[4 Q.L.J. 219. — Note.— 29 Vic, No. 6, s. 77, is repealed, see now ss. 398, S75, and
581 of Criminal Code. As to time at which point may be raised, see s. 668
of Criminal Code. Case referred to in R. v. Hamilton (9 Q.L.J. 251, post).]
Crown case reserved — Embezzlement — Larceny— General verdict —
29 Vic, No. 6, s. 77.
A prisoner was charged with embezzlement, the facts showed a case of larceny,
the jury brought in «, general verdict of guilty, and the prisoner was sentenced ;
but the sentence was suspended at the request of the prisoner's counsel to reserve
the question.
1893.
September.
LUley Q.J.
Harding J.
Cooper J.
Chubb J.
Real J.
240 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. Duncan Edd, that the qviestion might be raised at any time before sentence, that the
conviction must be reversed, the judgment vacated, and bail released.
Beg. V. Gorbutt, Dears & B. 168, followed.
Ceown Case Reserved, stated by Mr. District Court Judge
Noel.
The prisoner was charged at Townsville on an information for
embezzlement. The Judge directed a case of larceny. The jury
brought in a general verdict of guilty.
Macnaughton, for prisoner, submitted the proceedings should
be quashed. The prisoner was sentenced, but the sentence sus-
pended pending the decision of the question raised by Mr.
Macnaughton.
Power, for the Crown, referred to s. 77 of The Larceny Act of
1865, where, on an information for embezzlement, a prisoner may
be found guilty of simple larceny, or larceny as a servant,
[LiLLEY C.J. : That means a special verdict is required.] There
is a similar case, Reg. v. Gorbutt, 26 L.J. (M.C.) 47. The only
question is whether the objection was too late. [Real J. : How
was it too late ? It could not have been made before the verdict.]
The prisoner's counsel might have asked the Judge to so direct the
jury.
Harding J. : We have decided that a point may be taken at
any time during the trial, in Reg. v. Pieremont, 2 Q.L.J. 95, so long
as the prisoner has not been removed.
Lilley, for prisoner, was not called upon.
Lilley C.J. LiLLEY C.J. : Verdict was tantamount to finding the prisoner
guilty of embezzlement. The facts amounted to larceny. The
conviction must be reversed, the judgment vacated, the prisoner
discharged, if in custody, otherwise the bail to be released.
HardinR J.
Cooper J. Harding, Coopeb, Chubb, and Real JJ. concurred.
Chubb J.
Eeal J. Solicitors for prisoner : Powers & Robinson, agents for O'Malley,
Townsville.
CRIMINAL REPOETS, 1860-1907. 241
[Full Court.]
Be The Extradition Acts, 1870 and 1873, In re CARLO PEDRO.
[5 Q.I1.J. 22. — Note. — §ee also Commonwealth Extradition Act (No. 12 of 1903).
Case followed in R. v. Friday, 11 Q.L.J. 26, post.]
Extradition — Habeas Corpus — 33 and 34 Vict., c. 52, ss. 9, 10, 11 — 1893.
Evidence — Eight of prisoner to be heard — Return. February.
A fugitive convict was brought before a police magistrate in Brisbane for an ex-
tradition order. The prisoner was undergoing sentence for a crime committed in
Queensland. A warder from New Caledonia demanded his extradition for an offence
alleged to have been committed in France, and for which he had been sentenced.
The order for committal was made. An application for habeas corpus \7as then
granted on the ground that the prisoner was not given a chance of defence, and
could have disputed his identity.
Held, on the return to the habeas copiis, that the prisoner could not be detained
on the conviction under The Extradition Act, but must be remanded to custody
under the warrant mentioned in the amended return to the writ. The Court can
go behind the return and review the police magistrate's decision.
In re Castioni, 1891, 1 Q.B. 149, followed.
Reg. V. Hiistin, 1 Q.L.J. 16, discussed.
Motion for the release of a prisoner on a writ of habeas corpus
directing the keeper of Her Majesty's gaol at Brisbane to bring up
the body of Carlo Pedro, a prisoner in custody under a warrant
made under The Extradition Act. The habeas corpus was granted
on the grounds (1) that the prisoner had no opportunity of getting
legal advice ; (2) that he did not answer to the description which
had been suppUed ; (3) that he was not the fugitive criminal
whose extradition was demanded by the French authorities.
The prisoner had been arrested in Queensland and sentenced
to seven years' imprisonment for robbery. A French warder
from New Caledonia appUed for the extradition of the prisoner,
as being a man who had been sentenced to imprisonment for life
for theft and murder in France in 1878. The prisoner was brought
up several times at the City Police Court, but the French oificial
was unable to identify him personally, but did so from a written
description of certain marks on the body of the prisoner. An
affidavit of a medical man, filed for the prisoner, showed there
were no such marks as alleged by the French authorities. The
poUce magistrate committed the prisoner. An appUcation for
habeas corpus was then granted as above. The prisoner was
produced, and the return read and referred to the Full Court by
Harding J.
242
QUEENSLAND JUSTICE OF THE PEACE.
Be The Extra-
dition Acts, 1870
and 1873, In re
Carlo Pedro.
Harding J.
G. W. Power, for the Crown.
Harding J. : In England it is usual to refer cases like these to
the Secretary of State for the Colonies,. and as His Excellency the
Governor is his representative here, I have caused communica-
tion to be made to the Colonial Secretary, and expect that it wiU
by that means come to His Excellency's knowledge.
Power : The question whether the prisoner had a right to give
evidence on his own behalf did not arise. Clarke on Extradition,
3rd edition, 214.
[Real J. : I think the prisoner ought to have had an oppor-
tunity of being heard. He had only to bare his breast to show
that the marks with which it was sought to prove his identity
were not there.]
The question of identity in extradition is only necessary in
criminal cases, but where extradition of a prisoner under sentence
is asked for, it is only necessary to make out a case before magis-
trates.
[Real J. : The whole question to my mind is whether by the
law of England you can convict a man without his being heard.]
The evidence as to identity is very strong. There is no right
to go behind the return. In re Keogh, 15 V.L.R. 395.
[Harding J. referred to In re Castioni, 1891, 1 Q.B. 149.]
Re Guerin, 58 L.J. (M.C.) 45, foot note ; Reg. v. Hustin, 1
Q.L.J. 16. If the Court has power to send the case back to the
magistrates they might try the questions of fact on the affidavits,
or send it to a jury.
Harding J. deUvered the judgment of the Court : —
This is a matter adjourned from my chambers to this Court,
in consequence of my having felt myself hampered by a decision
of Mr. Justice Pring in the case of The Queen v. Hiistin, 1 Q.L.J.,
p. 16, in which His Honour decided that, upon a habeas corjms
the Court, or at least he sitting as the Court, would not go behind
the return, the return being of a similar nature to that in this
case. Before me in Chambers the prisoner was represented by a
solicitor or legal practitioner, but before this Court he has not
been represented, and the Court has given such assistance as it is
able to give, and I think, before we finally deliver judgment,
although we have done all on his behalf that we could have
done if we had been his counsel, that he should be asked
CRIMINAL REPORTS, 1860-1907. 243
if he has anything to say on his own behalf. Prisoner, do you j^j^oJ' ^cf "^ 1870
desire to be heard further ? [The Warder : Prisoner has not and 1873, la re
got anything to say, your Honour, except that he is not the ^^"^^ ^■"'*''-
man.] As it stands now, a writ of habeas corpus was issued for Harding J.
the production of this prisoner, and for the return of the authority
for his detention. He has been produced, and the return has been
read. It is under a warrant under The Extradition Acts, and also
under a warrant by this Court sitting in its criminal jurisdiction.
It is only as to the present ground that we have to deal with him.
As to the present ground it appears that he was originally brought
before the PoUce Magistrate of North Brisbane, and that the
proceedings there have apparently been regular up to a certain
point ; that is to say, the case against him was entered on, and
evidence to convict him was tendered — and possibly sufficient
evidence, if uncontradicted — but at this stage, instead of pro-
ceeding as in an ordinary inquiry before a Magistrate, the prisoner
was at once committed. Now there is a maxim of law, " Audi
alteram partem," which is always upheld, and has been conse-
quently upheld by this Court, which is to the effect that wherever
anjrthing in the nature of judicial proceedings is going on,
each party in those proceedings must be heard before an adjudica-
tion can be made against him. Here he was not in the usual
way asked if he had anything to say or any evidence to give, but
the conviction was entered at once. That we consider to be
WTong, and, consequently, if this was a proceeding for a writ of
certiorari, the adjudication could have been quashed. We have
now to see whether, the proceedings here being of habeas corpus,
a man can be held under a conviction which would be quashed
on another proceeding. The sections of the Act necessary to be
referred to are The Extradition Act, 1870 (33 & 34 Vict., c. 52),
ss. 9, 10, and 11, " when a fugitive criminal is brought before a
police magistrate, the police- magistrate shall hear the case in the
same maimer and have the same jurisdiction and powers, as near
as may be, as if the prisoner were brought before him charged
with an indictable offence committed in England." Section 10
enacts that " in the case of a fugitive criminal accused of an
extradition crime, if the foreign warrant authorizing the arrest
of such criminal is duly authenticated, and such evidence is
produced as would, according to the law of England, justify the
committal for trial of the prisoner, if the crime of which he is
accused had been committed in England, the police magistrate
shall commit him to prison, but otherwise shall order him to be
244
QUEENSLAND JUSTICE OF THE PEACE.
He The Extra-
dition Acts, 1870
and 1873, In re
Carlo Phdbo.
Harding J.
discharged." The second paragraph states, " In the case of a.
fugitive criminal alleged to have been convicted of an extradition
crime, if such evidence is produced as would, according to the
law of England, prove that the prisoner was convicted of such
crime, the police magistrate shall commit him to prison, but
otherwise shall order him to be discharged." Before I read s. 11
I wiU say a word or two on that s. 10. On that section there are
two sets of cases provided for. The one case is that of a fugitive
convict ; the other is that of a fugitive accused or suspected
person. Now, with regard to the fugitive suspected person,
consider what are the proceedings in this country with regard
to an accused. He is brought before the magistrate for the
purpose of committal for trial, and upon the production of evidence
which raises such a case as to induce the magistrate to think
that he ought to be committed for trial, then the magistrates'
are to commit him. They have not to weigh the evidence and
say whether the man is guilty or not guilty, but to come to the
conclusion that such a suspicion is aroused that the justice of the
case can only be satisfied by a trial. Upon that case there would
arise the legal existence of the crime, and the fact that the party
before them was the party who committed the crime. Now, as to
each of these there would be an issue — has such a crime been
committed ? Is the man that stands in the dock the man that
committed that crime ? And the jury in the Criminal Court, if
the Court were sitting in its criminal jurisdiction, would decide
both questions. Secondly, if prima facie evidence were brought
before the magistrates that such a crime had been committed,
and that the man before them was the man — it does not matter
whether there is conflicting evidence or not, for that is beyond the
magistrates' power to adjudicate upon — they have got to send it
on to the further Court. Those are the cases which are provided
for in the first part of s. 10, so that the paragraph from Clarke on
Extradition, which was read, would appear to have very Uttle
application to them. And then there is another class of cases which
come before the magistrates, more commonly called summary
justices, where the magistrate is judge and jury on the case, and
decides it, inflicting punishment as the result. In these cases
each side must necessarily be heard, and that is what ought to-
have occurred in this case. But that is not what has occurred,
in this case. The case before us now is one of a fugitive convict
brought before the magistrate for an extradition order, and
the magistrate has proceeded as if it were a fugitive accused
CRIMINAL REPOETS, 1860-1907.
245
brought before him. But it is not necessary to say that even in
that case the magistrates would be right, for I doubt in my own
mind whether even on that he ought not to have heard what there
was, because he might have produced evidence so conclusive
that there might not be any answer to it. But that need not be
dwelt upon. Then we come to the 11th section, which says " If
the police magistrate commits a fugitive criminal to prison,
he shall inform such criminal that he will not be surrendered
until after the expiration of fifteen days, and that he has a right
to apply for a writ of habeas corpus. ... If a writ of habeas
corpus is issued after the decision of the Court upon the return
to the writ, it shall be lawful for a Secretary of State, by warrant
under his hand and seal, to order the fugitive criminal (if not
delivered on the decision of the Court) to be surrendered." Now,
reading this 11th section, it seems impossible to conceive its
meaning to be to give him a right to apply for a habeas corpus
within fifteen days, unless something can be done on that habeas
corpus, because, if on that habeas corpus a return has to be made,
and the magistrate has committed, it would be simple justice to
remand him, and the benefit given him by the 11th section would
seem to be a nulUty ; but if, on the other hand, something can be
done on the return of that habeas corpus, then the 11th section is
intelligible and the remedy a useful one. Now, on that section,
there have been decisions quoted. One of them is in a note to
In re Ouerin, 58 L.J. (M.C.), p. 45, " A prisoner also obtained an
order for a habeas corpus on the ground that he was a British
subject. The Court held that it was competent for them to
review the magistrate's decision on that point, and, as the affidavits
were of a conflicting character, ordered an issue to be tried before
a jury to determine this question. The issue was tried on the
21st December, before Baron Huddleston and a common jury,
and the prisoner was ordered to be delivered to the French
authorities." And then there is a case of Re Castioni in L.R.,
1891, 1 Q.B. 149, and there the Judges went into this point at
considerable-, length.- The' judgment of Mr. Justice Denman
bears upon the subject, and I quote from p. 157 of that judgment.
He went into both of these sections at length. " It was at first
contended, in opposition to the application for a habeas corpus,
that if the magistrate upon this question once made up his mind
the Court had no jurisdiction to deal with it. It appears to me
that this proposition cannot' be maintained on the very face of
the Act itself, which requires by s. 11 that the magistrate shall
Re The Extra-
dition Acts, 1870
and 1873, /» re
Cablo Pedbo.
Harding J.
246 QUEENSLAND JUSTICE OP THE PEACE.
Se The Extra- inform the prisoner that he may apply for a habeas corpus, and
^^nd 181 3, 'in re if he is entitled to apply for a habeas corpus, I think it follows
Caklo Pedbo. ^iia,t this Court must have power to go into the whole matter,
Harding J. and in some cases certainly, if there be fresh evidence, or perhaps
upon the same evidence, might take a different view of the matter
from that taken by the magistrate." Then Mr. Justice
Haivkins deUvered judgment, and at p. 161 says : " Now, the
matter has been before the magistrate, and the magistrate acting
upon the information and the evidence before him, has come
to the conclusion that two things exist. First of all, that there
is abundance of evidence to justify him in committing the man
to be tried for murder — that is to say, there would have been
had this crime been committed in this country ; and, secondly,
he has come to the conclusion, rightly or wrongly, on which I
will have a word or two to say, that the offence was not of a
political character, and that, therefore, he ought to be given up.
The matter now comes before us — I will not say to review the
whole of his decision — but to ask ourselves whether or not, having
regard to the whole of the circumstances which are brought to our
attention, and which are proved by the depositions and other
evidence in the case, we come to the same conclusion as the
magistrates, or whether we deliberately arrive at an opposite
conclusion. Now, it seems to me to be impossible to say,^ for
the reasons which were stated in the course of the argument,
that if a man has a right to move for a habeas corpus in order that
the case may be reviewed, or for the purpose of getting his dis-
charge, he might not enter into matters which showed he had
been guilty of no offence at all ; and I should have said that by
no means was the matter concluded by the magistrate's decision
that he be committed for trial, because the magistrate does not
sit, when he is committing for trial, as a magistrate sitting finally
to dispose of the case and to give judgment upon it ; but he states
his opinion that there is a prima facie case, and on that ground he
signs his warrant of committal. Again, with reference to the
question of whether the magistrate has a right to deal with a
man and to deal with his objection of being committed for trial
for an extradition crime, I entertain no doubt that the magistrate
has no right and no jurisdiction to find finally, as against the
prisoner, whether or not he has committed that crime which he is
charged with having committed, or whether that crime is one of a
political character. I desire to call attention to certain pro-
visions in The Extradition Act. First, by s. 3, a fugitive criminal
CEIMINAL EEPORTS, 1860-1907.
247
shall not be siirrendered if the offence in respect of which his sur-
render is demanded is one of a political character, such as treason
or other matters ; or, if he proves to the satisfaction of the police
magistrate that the requisition for his surrender has, in fact, been
made with a view to try him for an offence of a political character.
These latter words undoubtedly tend to show that Sir Charles
Russell was wrong in the view that he took that the onus is upon
those who seek for the extradition to show that the offence com-
mitted is not of a poUtical character, because it must be upon
the person who seeks to be discharged on the ground that his
surrender is, in fact, asked for with a view to punish him for an
offence of a political character ; the onus of estabhshing that
is upon the alleged criminal himself. Now, s. 9 and s. 10 seem to
me to have some bearing on the question as to whether or not
the offence of which a man is charged is of a poUtical character.
First of all, the ninth section enacts that " When a fugitive
criminal is brought before a police magistrate, the poUce magis-
trate shall hear the case in the same manner, and have the same
jurisdiction and powers, as near as may be, as if the prisoner were
brought before him charged with an indictable offence committed
in England." If he were charged before a magistrate with an
indictable offence committed in England, the question of whether
or not the offence for which he was indicted were of a political
character or not would make no difference. But under this
section the magistrate is to deal with him as though the offence
charged were an indictable offence committed in England. Then
the section goes on to say : " The poHce magistrate shall not
adjudge that the offence is of a political character, but he shall
receive any evidence which may be tendered to show that the
crime of which the prisoner is accused, or alleged to have been
convicted, is an offence of a political character, or is not " an
extradition crime." It seems to me that the language of this
part of the ninth section in itself shows that the onus is on the
person who seeks to absolve or exonerate himself from the liability
to be handed over to the Government of the territory within which
the crime was committed. I find here, in furtherance of what
I have to say about this question of the jurisdiction of the magis-
trate, s. 10, which is, to my mind, by no means unimportant :
" In the case of a fugitive criminal accused of an extradition crime,
if the foreign warrant authorising the arrest of such criminal is
duly authenticated, and such evidence is produced as (subject
to the provisions of this Act) would, according to the law of
Re The Extra-
dition Acts, 1870
and 1873, In re
Carlo Pedbo.
Harding J.
248
QUEENSLAND JUSTICE OF THE PEACE.
Be The Extra-
dition Acts, 1870
and ] 873, In re
Carlo Pedbo.
Harding J.
England, justify the committal for trial of the prisoner if the
crime of which he is accused has been committed in England, the
police magistrate shall commit him to prison ; but otherwise
shall order him to be discharged." It does not seem to give
the magistrate himself the power of dealing with the matter
other than this : he is to consider whether the crime is one which,
if committed in England, would have made it imperative upon him
in discharging his duty to commit the man to prison. If so,
he is to commit him to prison, but he is, as I have already shown
by s. 9, obliged to receive any evidence which may be tendered
to show that the crime is of a political character, and that is
analogous to the provisions in Russell Owrney's Act (30 & 31
Vict., c. 35), which makes it the duty of a magistrate, if a prisoner
wishes to call evidence in support of his defence which he intends
to set up when he comes to be indicted, to take that evidence and
hand it over to the tribunal before whom the prisoner is ultimately
to appear. In furtherance of this view that I take, I read the
11th section : " If a police magistrate- commits a fugitive criminal
to prison, he shall inform such criminal that he shall not be
surrendered until after the expiration of fifteen days, and that
he has a right to apply for a writ of habeas corpus," which may very
well mean this : "I have power to commit you to prison because
I am satisfied that you have been guilty of a crime to which the
extradition law and treaty apply ; you have a right to have any
evidence taken on your behalf to show that you are a criminal
who ought not to be sent out because your offence, even if com-
mitted, was of a political character. I wiU take the evidence for
you. You have fifteen days to make application for your release
if you think fit to move for a habeas corpus." What follows
afterwards shows that it is not the magistrate who is to determine
these matters, but it is the Home Secretary who is to determine
whether or not ultimately the prisoner is to be sent abroad, because
the second part of the 11th section goes on to say : " Upon the
expiration of the said fifteen days, or if a writ of habeas corpus
is issued after the decision of the Court upon the return to the
writ, as the case may be, or after such further period as may be
allowed by a Secretary of State, it shall be lawful for a Secretary
of State, by warrant under his hand and seal, to order the fugitive
criminal (if not delivered on the decision of the Court) to be sur-
rendered to such person as may, in his opinion, be duly authorised
to receive the fugitive criminal." These are the provisions of the
Actj and they are quite sufficient to satisfy me that the magis-
CEIMINAL REPOETS, 1860-1907.
249
Re The Extra -
CiKLO Pedbo.
Harding J.
trate's decision is by no means binding, either in point, of law ^^■jq
or in point of fact, and that when these matters come to be and 1873, In re
considered upon the habeas corptis, if the Judges have to consider
the case, they must consider the case as it is before them at the
time the rule is discussed ; and I think that, in considering the
matter, though we pay respect to the magistrate's view, we are
not bound to follow it at the expense of the criminal if, upon the
whole state of things before us, we come to the conclusion either
that the crime has not been committed, and that there is no
prima facie evidence of it, or that the criminal ought not be sent
out to his own Government for the purpose of being dealt with
by reason of his oflEence being, though a crime, a crime of a
poUtical character." I have no doubt that that is good law.
The authorities collected in Paley on Extraditions, 7th Ed.,
p. 346, lay it down very clearly that, on a conviction that would
be quashed if brought before the Court in another form of pro-
ceedings, the prisoner cannot be detained. I am perfectly satis-
fied that on another form of proceeding this conviction would
not stand, but would be quashed. Consequently, the prisoner
•cannot be detained on this conviction, but he must be remanded
to his present keeping under an amended return of the writ. To
make it more clear, he is to be discharged from the warrant issued
on the conviction under The Extradition Act, and he is to be
remanded to custody under the warrant which is mentioned in
the amended return to the writ. My brother Judges concur,
.and that is the judgment of the Court.
Solicitor for prisoner : Price.
iSohcitor for Crown : J. Howard Gill.
[FuLi. Court.]
BRITCHER V. WILLIAMS AND OTHERS.
(5 Q.L.J. 39.— Note.— Sec. 27 ol the Brands Act ol 1872 is repealed, see now s. 447
ol Criminal Code. As to causing act to be done, see-now s. 7 of Criminal
Code.]
Brands Act of 1872, s. 27— Admission of evidence of previous
convictions — Practice — Costs.
Two snmmonses were issued against B , at the Cbarleville Police Court, for
wilfully branding with his registered brand two calves of which he was alleged not
1893.
April.
Griffith C.J.
Harding J.
Chubh J.
Bcal J.
250
QUEENSLAND JUSTICE OF THE PEACE.
Bkitchee v.
Williams and
Otheeb.
to be the rightful owner. By consent both summonses were heard as for one
offence only. Evidence was given of previous convictions for illegally branding,
but that, as to branding, did not show that B. had himself branded either of the
calves, and he was convicted and fined £40 and costs.
Held, on a motion to quash the conviction, that as the evidence of previous
convictions had not been objected to before its admission, the conviction was not
bad on that ground, but that the conviction must be quashed on the ground that
the evidence did not show B. to be guilty of the offence charged. The evidence
showed that he was present and caused the branding to be done.
The rule was made absolute, with costs against the Crown.
Motion for a rule absolute to quash a conviction or order made
by John Vivian WUUams, Police Magistrate, and John Armstrong,
Junior, at the Charleville Police Court, on the 3rd day of
February, 1893, on a complaint wherein Herbert Hart was com'
plainant, and Henry Samuel Britcher defendant, on the iollowing
grounds : — (1) Wrongful admission of evidence of previous
convictions ; (2) that the evidence did not show the defendant
to be guilty of the offence charged ; and (3) that there was no
evidence to support the conviction.
Bannatyne, for Britcher ; Byrnes A.G. and Feez, for the con-
victing magistrates, and (at a later stage) for the Crown, to
show cause.
Bannatyne : The evidence showed that the branding was
done by a servant of B., assisted by his two sons. Evidence was
admitted of previous convictions. In a criminal case, oiily
evidence material to the issue can be allowed — Beg. v. Gibson,
18 Q.B.D. 537. The Bench allowed the sergeant of police to
state that there had been two previous convictions, and that, in
the first case, the defendant had been fined £10, and the second
£20.
[Geiffith C.J. : We are all agreed that it was not admissible
evidence if it was objected to.]
[Haeding J. : It has been laid down over and over again that
a Judge of this Court must not allow a prisoner to be convicted
on improper evidence, and that it is the Judge's duty throughout
the trial to protect the prisoner from improper evidence.]
[Geiffith C.J. : Can you show that in a case of summary
conviction before justices any conviction must fail if evidence
is admitted which is inadmissible ?]
^ submit that is so. There is a conflict of evidence as to
whether the evidence was objected to.
CRIMINAL REPORTS, 1860-1907.
251
[Griffith C.J. : Is there any case where a conviction has Bkitoheb «.
not been sustained where the objection as to admissibihty of Otheks.
evidence is made for the first time after the conviction ?]
I do not know of any.
[Griffith C.J. : Neither do I. In common law, if you give
imsound reasons for the admissibility, of evidence, and the Judge
admits it, you cannot afterwards upset the decision 071 that
point.]
As to the third objection. Ex parte Hop Sing, 4 N.S.W.,
W.N., 59, was cited.
Byrnes A.G. : The appellant was only nineteen yards away
from where the branding took place. He was practically present
and employed an innocent person to do an illegal act. The defen-
dant admitted in cross-examination that he had been twice
convicted. No objection was taken to the evidence-in-chief
at the time. The police magistrate has made an affidavit to that
effect.
Bannatyne, in reply, submitted there was no evidence that the
appellant was so close to the man actually doing the branding
that he was actually engaged in the work himself.
Griffith C.J. : This is a motion to quash a conviction against Griffith C.J.
Henry Samuel Britcher for illegally branding two calves, on the
grounds (1) that evidence of previous convictions was wrongfully
admitted ; (2) that the evidence did not show the defendant to
be guilty of the offence charged ; and (3) that there was no evidence
to support the conviction. As to the wrongful admission of
evidence, affidavits have been filed that no objection was made
at the time. I beheve that was the case, and on that ground the
appeal fails. If justices are to be held responsible for the ad-
mission of evidence, and if a conviction is not to hold good when
evidence is wrongfully admitted without an objection being
made at the time, an intolerable burden will be imposed on
magistrates. Another objection is that the offence of which the
defendant has been convicted is different from the one with which
he has been charged. The defendant was charged with branding,
and the evidence clearly showed that he caused and directed
the branding to be done. The real question is whether under the
circumstances he was properly charged with branding. It is not
necessary that a man should actually do the branding himself
to become a principal. If he were in the yard and saw the brand-
252
QUEENSLAND JUSTICE OP THE PEACE.
Br.ITCHEB V.
Williams and
Othees.
Griffith C J.
Harding J.
Chubb J.
Eeal J.
Griffith C.J.
ing done, he is quite as much a principal. No alteration has heen
made in the charge preferred against the defendant, and on that
ground I think the order must be made absolute and the con-
viction quashed. Costs were asked against the Crown, but I
do not think they should be granted.
Harding J. : I think the rule should be made absolute and the
conviction quashed on the second ground, but I do not express
any opinion at present with regard to the first ground of the
appeal. The Crown has joined in the fight and supported the
complaint, they must bear the penalty and will have to pay the
costs.
Chubb and Real JJ. concurred.
Griffith C.J. : I hold the opinion that the Crown ought never
to pay costs in criminal or quasi-criminal cases ; but perhaps
I am prejudiced on account of having been so long a Crown Law
Officer.
Rule absolute with costs against the Crown.
Solicitors for appellant : Bouchard <fc Holland.
Solicitor for respondent : J. Howard Gill.
1894.
October.
CooperJ,
CImbb J.
[Northern Full Court.]
SMITH V. O'BYRNE, Ex parte O'BYRNE.
[5 Q.L.J. 126.— Note.— See now s. 280 of Criminal Code. See also Spatkes v.
Martin (2 Q.J.P.R. 12), Armat v. Little (3 Q.J.P.R. 21, 1909, S.B.Q. 83.)]
Assault — Schoolmaster — Punishment of pupil — Excessive violence.
A schoolmaster may punish for school offences, but if he exceeds the bounds of
moderation eiliher»in the- manner, instrument, or quantity of the punishment, he is
answerable for the excess.
The authority and position of a schoolmaster explained.
Motion calling upon E. J. Hennessy, John T. H. Bowden, and
G. Massey, of Thursday Island, to show cause why a conviction
or order made against Mary O'Byrne for a common assault upon
one Stella Anne Smyth, whereby the said Mary O'Byrne was fined
one penny, should not be quashed, on the ground that there was
no evidence of excess either in the manner, instrument, or quantity
of punishment inflicted, and why the said Mary O'Byrne should
not recover the costs of the application.
CEIMINA.L EEPOETS, 1860-1907. 25S
The facts appear in the judgment of Chubb J. Smith v. o;Bybne
^^ •" ° Ex parte O'BYRHii
Macnaughton, for the appellant, moved the rule absolute.
The punishment was not excessive. Archbold's Criminal Practice,
723. The Court will review the finding of the justices. Neighbour
V. Moore, 4 Q.L.J. 145.
Jameson, for the justices, asked to be heard on the question
of costs, as the magistrates had been brought into Court.
Cooper J. : You cannot have costs. My opinion is now, as Cooper J.
it was when I granted the rule nisi, that there was absolutely
no evidence before the magistrates that there was excess in the
force of the application of the instrument, or that an improper
instrument had been used in the punishment of the child. That
being so, the rule must be made absolute, with costs against the
respondent and not against the magistrates.
Chtjbb J. : As this is a matter of some importance, I have Chubb J.
taken the opportunity since the papers have been in my possession
to look into the authorities, and it may be useful to schoolmasters
and others to know the law on such matters. A schoolmaster
may, in respect of school offences, misbehaviour, disobedience,
idleness, and the like, lawfully inflict moderate and reasonable
corporal chastisement, commensurate with the ofiPence, upon a
scholar capable of appreciating the punishment. If, however,
he exceeds the bounds of moderation, either in the manner, the
instrument, or the quantity of the punishment, the excessive
violence is unlawful, and he is answerable to the law for that
excess. The authorities for this doctrine will be found in 1
Hawk. P.C, c. 60, s. 23 ; Bac Ab. (Assault and Battery) ; 1
Hale, P.C, 473, 474 ; 1 East P.C, 406 ; Com. Dig. Pleader
(3 M., 19) ; Stephen's Crim. Dig. (Art. 201) ; 1 Buss. Cr., 4th
Ed., 751, 1026 ; B. v. Miles, 6 Jur. 243 ; R. v. Hopley, 2 F. & F.,
202 ; B. V. Griffin, 11 Cox CC, 402 ; and Fitzgerald v. Northcote, 4
F. & F., 656. In Year Book, 7 Ed. IV., the position of the school-
master is put as that of temporary guardian. In Year Book, 21
Ed. IV., fo. 6, p. 12, there is a case of assault and battery by an
apprentice against his master, in which appears a qucere — " if a
schoolmaster can justify {i.e., beating a scholar), for it is not
prejudice to him if the scholar will not take learning." Whether
this qucere is the observation of the Judge or an addition of the
reporter does not appear clearly. The remark seems foohsh, and
the reason trivial. In B. v. Hopley, 2 F. & F., 202, where a
schoolmaster was indicted for the manslaughter of a scholar, a
254 QUEENSLAND JUSTICE OF THE PEACE.
Smith D. 0|Byene ^^^j g^gg(j thirteen, by excessive beating with a thick stick,
xpait^ -JENE Q^gjj|^yj,j^ Q j_ directed the jury as follows : "By the law of
Chubb J. England a parent or a schoolmaster (who for this purpose repre-
sents the parent and has the parental authority delegated to
him) may, for the purpose of correcting what is evil in the child,
inflict moderate and reasonable corporal punishment, always,
however, with this condition — that it is moderate and reasonable.
If it be administered for the gratification of passion or of rage,
or if it be immoderate or excessive in its nature or degree, or if it
be protracted beyond the child's powers of endurance, or with
an instrument unfitted for the purpose and calculated to produce
danger to life and limb, in all such cases the punishment is exces-
sive, the violence is unlawful, and if evil consequences to Ufa
or limb issue, then the person inflicting it is answerable to the
law." In a subsequent case, Fitzgerald v. Northcote, 4 F. & P.,
()56, the same learned Judge says : " The authority of the school-
master is, while it exists, the same as that of the parent. A
parent, when he places his child with a schoolmaster, delegates
to him all his own authority, so far as it is necessary for the weKare
of the child." In both these oases, it may be noticed in passing,
the scholars were boarders ; and in B. v. Hopley the master, before
inflicting the punishment, had written to the boy's father pro-
posing to give the boy a severe beating, and had received the
father's assent thereto. In this case the appellant, the head
mistress of the primary school at Thursday Island, punished, in
open school, a girl day scholar, aged nine years, for continued
neglect of home lessons, after previous warning and punishment.
The punishment consisted of four strokes of a cane, described in the
evidence as of about the thickness of a boy's little finger. Two
of the strokes were on the right hand, one on the left, and the
fourth on the left forearm, two inches above the wrist. It is
apparently this last stroke that is complained of — the cau^a
teterrima belli. A medical expert, Dr. Salter, who saw the injury
on the same day and shortly after it was afflicted, deposed that
there was a slightly raised mark above the wrist, that he did not
think the child would suffer from it, and that it was nothing
serious, but that it might have led to a serious injury as regards
muscular action, and that in his opinion (in which I quite agree)
■' on the wrist is not a fit place to cane a child." The evidence
of the child and her juvenile brother was that she had her hand
out perfectly still — leading to the inference that the blow on the
wrist was intentional. If this were so, and the justices on reason-
CRIMINAL REPORTS, 1860-1907. 255
able evidence came to that opinion, and also to the opinion that Smith -j. O'Bybne
,1 TIT o ■ , , , . „ , Ex paric O'Bybne
there had been an excess of violence, then their finding on the
facts ought not to be disturbed by this Court, and the conviction Chubb J.
ought to be sustained. Then was there any reasonable evidence
of an unlawful battery ? The act of correction was lawful in
itself. It could only become unlawful by and in respect of an
excess. To make it an offence punishable by the criminal law
the battery must have been intentional as well as excessive. If,
therefore, the stroke on the wrist was unintentional and happened
by misadventure, or was caused by the child's own fault, then it
was no battery. There is no necessity to cite authorities for this
elementary proposition. Now the evidence of the appellant and
three of the school children was that the stroke on the wrist was
occasioned by the child swerving her hand as the cane descended.
Looking at the whole of the evidence and to the fact that there
was no evidence of anger or improper feeling shown by the
appellant, or of cruelty either by use of an improper instrument
for punishment or by the infliction of an excessive number of
strokes, I, as a judge of fact, would have been prepared to accept
the appellant's version of the affair as the true one, not only on
the weight of evidence, but because I cannot bring myself to the
belief that the appellant deliberately and cruelly struck intention-
ally at the child's wrist. The three justices, however, who heard
the case have come to that conclusion, necessarily disbelieving
the appellant's story, and declining to accept her explanation.
Then, with regard to the injury itself, it was stated to be " nothing
serious " — the child did not cease attending school in consequence
— and that it was of the most trifling character is indicated by
the fine of the penny inflicted by the justices. I may say, how-
ever, that I do not for a moment doubt that the justices came to
that conclusion in perfect good faith. Now this Court will
review the finding of justices, even upon the facts where it appears
that they have, in our opinion, taken an unreasonable view of
the evidence, and. the interests of justice require it. Neighbour
V. Moore, 4 Q.L.J. 145, p. 14, per Lilley C.J. I have no hesita-
tion in saying that I can myself see nothing to justify the infliction
of even the nominal fine imposed on the appellant. In my
opinion the correction was lawful — it was moderate, reasonable,
and inflicted with a proper instrument. There was no excess,
as the blow on the wrist was, I think, a misadventure, and in any
case, was of no serious consequence. The justices should, there-
fore, I think, have dismissed the complaint. The conviction
256 QUEENSLAND JUSTICE OF THE PEACE.
Smith v. 0|Bybne therefore must be quashed, and the fine and costs paid by the
*^'"_!_ ^ ''"^ appellant returned to her. Costs against the respondent. No
Chubb J. pQgtg against the magistrates.
Solicitors for appellant : Roberts <k Leu.
Solicitor for magistrates : T. G. Fraser, Crown Solicitor.
1894.
Fehrvary.
[Full Coubt.]
REGINA V. JACK.
Q.L.J. 60. — Note. — 29 Vic, No. 13, ss. 48, 51, are repealed, see now s. 668 of
Criminal Code. Instead ol Order XXXI., r. 4, ol Crown Rules, see now Criminal
Practice Rules, 0. IX., r. 3, Wilson & Graham's Code, p. 398. 55 Vic, No. 24,
s. 4, is repealed, see now s. 212 of Criminal Code. Compare also s. 584 of
Criminal Code.]
Criminal Practice Act of 1865 (29 Vic, No. 13), ss. 48, 51—0.
XXXI., r. 4 — Appeal — Criminal Law Amendment Act of 1891
Griffith G.J. (55 yic.^ No. 24), s. 4 — Limitation of time — Arrest.
Harding J.
Seal J. As a general rule, a Crown Case Eeserved for the opinion of the Supreme Court
will not be heard unless the papers are delivered to the Judges four clear days
before the hearing, as prescribed by the Order XXXI., r. 4 (Grown Rules).
When a man is apprehended on a charge of an oHence the nature of which is
such that upon an information charging him with it he might be convicted of the
offence with which he is actually charged in the information, that apprehension is
a commencement of the prosecution for the latter offence.
On a charge of an offence under s. 4 of The Criminal Law Amendment Act of
1891, proof by parol that the prisoner was apprehended on a charge, then stated to
him, of rape on the same person, held sufficient evidence of the commencement of
the prosecution.
JR. V. Phillips (E. & E. 369) explained.
Case stated for the opinion of the Court by Miller D.C.J.
The prisoner, an aboriginal, was tried at the Criminal Sittings
of the District Court, at Rockhampton, on 9th January last, on
a charge of attempted rape on a girl aged 4J years. At the close
of the evidence, which went to show that the offence was com-
mitted on 9th November, Mr. Lilley, who appeared for the prisoner,
asked the judge to direct the jury to bring in a verdict of not
guilty, on the ground that there was no evidence that the prose-
cution was commenced within two months of the commission of
the offence. His Honour, in stating the case, said that the only
evidence of the commencement of the prosecution was that of
CRIMINAL REPORTS, 1860-1907. 257
the arresting constable, who deposed that he arrested the prisoner Bbqika v. Jack.
on the 9th November on a charge of rape committed on the girl.
No warrant or information was used in the initiatory proceedings,
or produced or tendered in Court. At the Crown Prosecutor's
request, His Honour allowed the case to go to the jury, and
reserved the point for the Full Court. Prisoner was convicted,
and His Honour remanded him for sentence until the next sittings
of the District Court in Rockhampton, and in the meantime
committed him to prison, allowing him bail if he could obtain it.
The points for the consideration of the Court were : (1) Is it
necessary for the Crown to prove in an offence under The Criminal
Law Amendment Act of 1891 that the prosecution was commenced
within two months after the commission of the offence ? (2) Was
the evidence of the arresting constable sufficient to prove the date
of the commencement of the prosecution ?
Byrnes A.G., and King for the Crown.
Lilley for the prisoner.
Griffith C.J. pointed out that the papers had not been de-
livered four days before the sitting of the Court.
Lilley : I understand the jiidge who tried the case has been
away on circuit, and the preparation of the case delayed. I ask
the Court to waive the rule in this instance.
Griffith C.J. : Order 31, rule 4, provides that when a question
is reserved by a Court of Criminal Jurisdiction for the Supreme
Court the case is to be delivered to the Registrar, and that the
Registrar, or if the question was reserved on the application of
the prisoner's counsel, the prisoner, must cause office copies of the
case to be delivered to the Judges and to each party four days at
least before the case is to be heard. The object of the rule, of
course, is that in a matter involving the liberty of the subject
the Judges may have an opportunity of reading the case at their
leisure, and considering the points for decision before the argu-
ment. That being so, the rule ought to be observed unless satis-
factory reason is given for the default in the delivery of the copies.
In the present case the papers came direct from the Judge, and it
is to be presumed that he used all expedition in the matter, and
in any case the parties ought not to suffer for any want of ex-
pedition on the part of the Judge. As the question involves the
liberty of the subject, I think we ought to hear the case, but it
should be understood that as an ordinary rule cases will not be
258 QUEENSLAND JUSTICE OF THE PEACE.
Eeoina V, Jack, heard unless the papers are delivered to the Judges four clear
days before the case comes on for hearing.
Lilley submitted that there was no evidence of the date on
which the prisoner was first brought before the justices. He was
arrested on a charge of rape, and there was no evidence that the
prosecution was commenced until 9th January, when an informa-
tion was presented in the District Court for an attempted rape.
The arrest is not the commencement of the prosecution. R. v.
Phillips, R. & R. 369 ; R. v. Parker, 33 L.J. (M.C.) 135. Laying
an information is the commencement of the prosecution. It is
not always necessary to have a %vritten information. S. 42 of
The Justices Act says proceedings are to be commenced by a
complaint. There was no evidence that the proceedings were
commenced in that way. In R. v. Hull, 2 F. & F. 16, it was held
that the issue of a warrant was not evidence of the commencement
of the prosecution. R. v. Brooks, 2 C. & K. 402 ; 1 East, P.O.,
186. The arrest was simply the detention of the person for the
safety of the pubUc. The prosecution commenced with the pro-
ceedings in Court.
King contended that the oims was on the prisoner to prove
that the prosecution had not been properly initiated. The Crown
Prosecutors must be presumed to have performed their duties
properly until the contrary was proved.
[Griffith C.J. : I am not acquainted with any such rule.]
The arrest is a step in the prosecution, and consequently the
prosecution was commenced within the time prescribed by the Act.
Lilley in reply : The arrest might be a step in the prosecution,
but it is no part of it. Austin v. Dowling, L.R. 5 C.P. 534.
" ' ■ Gkiffith C.J. : The prisoner was charged, under the 4th sec-
tion of Th^ Criminal Law Amendment Act of 1891, with attempting
to commit an ofience upon a girl under the age of 12 years. That
section provides that any prosecution for any offence under it
must be commenced within two months after the commission of
the offence. It was contended by Mr. King that the onus was
on the prisoner to show that the prosecution had been begun after
the two months, but all the cases referred to were to the contrary
effect. The general principle laid down is that the information
must disclose the committal of an offence within the cognisance
of the Court both as to time and place. It appears, however,
that under such statutes it is not necessary to allege in the inform-
ation the date of the commencement of the prosecution, but it
CKIMINAL REPORTS, 1860-1907.
259
also appears that when an objection has been taken that the
prosecution had not been commenced within the prescribed time,
•effect has been given to it. The evidence as to the commencement
■of the prosecution in this case is this : — Within six days after the
offence was committed, the prisoner was arrested by a constable,
who informed him that it was for an offence, which he described
as rape, upon the child on whom the offence was committed. It
was suggested that the offence, of which he was ultimately con-
victed, was not that on which he was arrested, but that difference
•does not constitute any objection if the prosecution was com-
menced within the prescribed time. It may be taken, therefore,
that if the arrest of the prisoner on that charge was the com-
mencement of the prosecution for the offence of which he was
■convicted, the prosecution was commenced in sufficient time.
The contention for the prisoner was substantially that a prosecu-
tion must be commenced by laying a complaint before a justice,
and that the apprehension of a prisoner on a charge communicated
to him by the constable is no evidence of a previous complaint
before a justice, nor of itself a commencement of the prosecution,
nor a step in the prosecution. If that proposition were sustained,
the conviction would have to be quashed. Consider the object
■of the statute. The offence is one which is easily charged, and
substantial proof of which is soon lost, and it has often been said
that it is hard to disprove. The object of this provision is to
prevent stale charges, and to make the prosecution follow as soon
as possible on the commission of the offence. What, then, is the
meaning of " the commencement of the prosecution " ? If we
are bound by any decisions to hold that the term " prosecution "
is a term of art having a technical meaning, we must follow those
decisions. But the cases that have been cited do not appear to
me to lay down any strict or technical interpretation of the term
" prosecution." The earliest case was that in East's Pleas of the,
■Grown. Then came the case of R. v. Phillips in Russell and Ryan.
In the days when those cases were heard there was no Court for
dealing with Crown cases reserved, but it was the practice for the
judges to consult together and to make a recommendation to the
■Secretary for State if they thought that a conviction should not
be upheld. The words " commencement of the prosecution,"
used in the Queensland Act, are words often used in old statutes,
and in construing their meaning regard must be had to what was
the law about the commencement of prosecutions in those days.
In 2 Hale's Pleas of the Grown, p. 72, it is said : " Touching their
Reoima v. Jack.
Griffith O.J.
260
QUEENSLAND JUSTICE OF THE PEACE.
Begina v. Jack.
Griffith C.J.
Harding J.
Keal J.
arrests or apprehending them " (i.e., offenders), " this is the first
instance " (i.e., beginning) " of their prosecution." The olcJ
doctrine of hue and cry is an illustration of the fact that the
ordinary way in which a prosecution was commenced was by
apprehension of the offender. I think, then, that we may very
well understand that the Legislature when in the old statutes
they used the term " prosecution " used it with reference to what
was then understood to be the ordinary means of bringing an
offender to justice, and that we are not precluded from holding
that under this statute also the arrest was the beginning of th&
prosecution. That seems to be the oridnary meaning of the term,
and this construction appears to be supported by the older author-
ities. The case of B. v. Phillips, R. & R., 369, was relied on as
authority against this view. The marginal note of that case is,
" Proof by parol that the prisoner was apprehended for treason
respecting the coin within the three months will not be sufficient,
&c." On looking into the report itself, however, it appears that
the head-note is inaccurate. The prisoner was apprehended on
a charge of " high treason." At that time certain offences-
against the coinage law were made high treason by statute. All
that the Court decided was that evidence of apprehension upon a
charge of " high treason " generally was not sufficient evidence
that the prisoner was apprehended for the offence against the
coinage laws for which he was indicted. It appears in the present
case that within two months of the committal of the offence the
offender was arrested on the charge of rape on the same child. I
think that it was a fair inference that he remained in custody on
that charge until brought before the jury and convicted. It
seems to me, therefore, that there was sufficient evidence that
the prosecution was commenced, in the sense in which the term is
used in the statute, within the time prescribed. On the grounds
that I have stated, I think the conviction ought to be affirmed.
Habdikg and Real JJ. concurred.
Solicitors for prisoner : Chambers, Bruce <Ss McNab.
CRIMINAL REPORTS, 1860-1907.
261
[Full Court.]
REGINA V. MANGIN.
16 Q.L.J. 63.— Note.— 31 Vic, No. 13, s. 64, is repealed, see now s. 10 of Criminal
Law Amendment Act of 1894 (58 Vic, No. 23) not identical.]
Criminal law — Evidence and Discovery Act (31 Vic, No. 13),
s. 64 — Untrue representation — Confession.
M. was charged with having stolen certain gold, the property of the Mount
Morgan Company. G., a private detective, who had worked himself into M.'s
•confidence gave evidence that he told M. that he came from S. Africa, and had
done business in diamonds, where a fellow could make a little money if he were so
inclined. M. replied, "a man can make a little money here if he goes the right
way about it." G. then, by means of false statements, induced M., by promising
io participate in the gold robberies, to admit that he had in his possession some
gold scraped from the Company's retorts. The statements were admitted to be
false. The evidence was admitted, and the prisoner convicted.
Held, by Harding and Beal JJ. , that these representations being untrue, and
being made after the subject matter of the charge had been taken, all subsequent
material confessions of M. were inadmissible in evidence, as being induced by such
false statements, and that the conviction must be annulled.
Case stated for the consideration of the Court by Miller D.C.J.
The prisoner, Reuben Mangin, was tried in Rockhampton for
having on the lith September last, at Mount Morgan, stolen
loz. lOdwt. of gold, the property of the Mount Morgan Company,
and for having on the 20th of the same month, also at Mount
Morgan, stolen 18oz. of amalgam and 2 oz. 19 dwt. 18gr. of gold
belonging to the Company. He was convicted on both counts.
The principal witness against him was F. W. Gabriel, a private
•detective employed by the Company. Gabriel had lived at the
same hotel as the prisoner, and had by gradually working himself
into the prisoner's confidence gained sufficient evidence to
associate him with the gold steahng. In the course of the trial
he gave evidence, in which he stated that on the 7th September
lie had a conversation with Mangin, who asked him where he
■came from. By that time he was on familiar terms with Mangin.
Gabriel said that he came from South Africa, where he had been
■doing a little business among the diamonds, and where a fellow
could make a little money if he were so incHned. That statement
he said in the witness-box was untrue, inasmuch as he had done
business in diamonds, but not in South Africa. He continued
to say that Mangin repHed that—" A man can make a little
money here if he goes the right way about it," and described
how by representing himself to Mangin as a man who would
1894.
February.
Harding J.
Real J.
262 QUEENSLAND JUSTICE OP THE PEACE.
Regina v. Mangin participate in the gold robberies, he had induced him to admit that
some gold in Mangin's possession had actually been scraped out
of the retort at Mount Morgan. On Gabriel giving this evidence,
Mr. Lilley, who was appearing for the prisoner, submitted that
under the 64th section of The Evidence Act, the evidence was
inadmissible, inasmuch as the admissions from the prisoner were
induced by untrue representations. A note of the point was taken
by the Judge, and it was now brought under the notice of the
Court on the special case stated by His Honour.
Lilley, for the prisoner : Section 64 of The Evidence ani
Discovery Act is pecuhar to Queensland. The only decision on it
is R. V. Horrocks, 4 Q.L.J. 218. The representation was untrue,,
and admitted by Gabriel to have been made to secure the
prisoner's confidence. The ownership of the gold was not
properly proved. There was no evidence, apart from the con-
fessions, that the gold ^^as taken without the consent of the-
directors. R. v. Meehan, 8 S.C.R. (N.S.W.) 289 ; R. v. Thomfson
(1893), 2 Q.B., 12 ; R. v. Windsor, 4 F. & F. 361 ; Rex v. ParralL
4 C. & P. 570.
Byrnes A.6., Power and King, for the Crown : The section
does not apply to admissions made before there was any charge.
Gabriel was a private of&cer, not a person in authority. The
term " untrue representation " must be interpreted to mean
any misrepresentation in connection with the offence Avith which
the man is actually charged.
HardiDg J. Haeding J. : This is a case stated by the learned Judge who
presided in the criminal side of the District Court holden at Rook-
hampton on 16th January last. The prisoner, Reuben Mangiii,,
was on that day charged with the larceny of 1 oz. 10 dwt. of gold,
and the larceny of 18 oz. of amalgam and 2 oz.. 19 dwt. of gold,
said to be the property of the Mount Morgan Gold Mining Com-
pany Limited. The case shows that, unless by means of admis-
sions made by the prisoner, the case was not proved against him.
The point more particularly raised by this case is as to the untrue
statement which is said to have been made by Gabriel to the
prisoner before the taking of the goods alleged to have been stolen.
That statement was to the effect that he came from South Africa,
and that he had been there doing a little business among the
diamond fields. Now, nothing of the kind had ever occurred..
Mr. Lilley objected to that. It was subsequent to that that the
alleged confessions were made, upon which alone the conviction
CRIMINAL EEPORTS, 1860-1907. 263
can be sustained. The learned Judge states that there was no Kegina v. Mansin
evidence or confession made by the prisoner to Gabriel after the Harding J.
untrue representation rightly admissible. The case does not set
out other untrue statements made by Gabriel to the prisoner,
but it attaches as part of the case the notes of the evidence, and
from these there appears to have been a false statement made by
Gabriel to the prisoner material to a prosecution, subsequently
to that which took place with respect to the gold, which had been
then taken and was then in the possession of the prisoner. Now,
these facts being incorporated with the case, the second question
raised by the Judge — Was there any evidence that the property
was taken without the consent of the owners ? — arises. If that
part of the evidence is read into the case, then this question raises
that point — Was there any evidence that the property was taken
without the consent of the owners ? — because it is only by means
of confessions, after such false statements as I have indicated has
been made, that any such evidence was brought out at aU. So
that I think that the point is open to us without deciding whether
or no this statement about the diamonds so long before the occur-
rence could vitiate the matter, or be a good reason for reversing
the judgment. Now, certain misstatements, which I do not find
it necessary for a decision to point out, having been made by
Gabriel to the prisoner, a certain amount of confidence having been
estabhshed between the two, and arrangements having been made
between them that they should obtain substances which are
retortable into gold from the Company — that being the case,
and substances having been actually obtained by the prisoner,
this occurred :— On Wednesday, Gabriel says he saw Mangin
at the hotel : " I produced some notes. I went into his bedroom.
He showed me some pieces of what I took to be gold, which he
said he had obtained from the pipe of the retort. He put them
into a small box which I gave him. He also showed me a
pocket, which had been cut out of a pair of trousers, with
some amalgam in it, weighing about 18 oz. or 20 oz. I told
him he was getting some more gold. We then went into the
bar." " I told him I was getting some more gold " — a false state-
ment. " We went into the bar, and there met William Russell.
All three of us went into Mangin's bedroom. On the Avay to the
bedroom Mangin said, ' Are you sure Russell is aU right ? ' I said,
' Yes.' " That is not true. There is a further misstatement.
I think that after that, at all events, all statements made by the
prisoner were affected by those untrue representations. " After
264 QUEENSLAND JUSTICE OF THE PEACE.
Kegina v. Manoin this they went into the bedroom, and he (Mangin) produced a bag
Harding J containing amalgam, and asked Eussell to feel the weight of it."
There is a confession that he had in his possession amalgam.
" There was some conversation which I don't recollect. We went
into the bar and had a drink. Eussell left. Mangin then said
if I had been here two months ago we could have made a
couple of thousand pounds a month." There is another con-
fession, if the jury put a certain construction on it. Further
on we find he says : " Going through the bar we found a man
lying across the gateway named Joyce. He was drunk. I said,
' You can't have him here ; take him into Mangin's room.'
Mangin said, ' Do you think this fool is shadowing us ? ' " There
is another confession — that is, if the jury chose to draw a certain
conclusion from it. " I replied, ' It might be.' Mangin said,
' I will give you my swag to take care of to-night.' " There is
another confession. " I saw Mangin at Mills' Hotel on the
21st (Thursday), and he showed me a piece of metal which he said
was stuff taken from the retort." Then there is other evidence to
the same effect. As I have already said, that amounts to the
making of a representation by Gabriel pertinent to the matter after
the subject matter of the charge had been taken and the crime
committed and completed, whatever it was. That being so,
I think that the learned Judge below was right when he did not
think the evidence was admissible, but he admitted it on pressure
from the Crown, subject to a case to be reserved. I think the
evidence was wrongly admitted, and consequently that any
conviction which followed upon it was bad. The form of the
order should be that the judgment be annulled, and an entry be
made on the record and on the indictment that the prisoner
ought not, in the judgment of the Judges, to have been convicted
of the felony aforesaid.
Eeal J. Real J. ; I am of the same opinion. The whole of the state-
ments were made before any material admission had been obtained.
All the representations Avere made by Gabriel before he got one
very material admission — that he (Mangin) took it without the
consent of the directors. That is the last thing of all. He appears
to have held his hand until he got that admission out of him,
and immediately after he had got it he handed him over to the
pohce. That appears to have been on the 21st, on which day
Mangin told him he would have got more, but the directors were
there, and he could not get as much as he liked. The next morning
Gabriel gave him into custody. All the representations were
CRIMINAL REPORTS, 1860-1907.
205
made before he got that admission, and that is material evidence i^'^'ginau. Mangin
relied upon in the case, as showing the taking of the property Real J.
without the consent of the directors. We cannot see how far the
jury rehed upon that, but that alone would be sufficient to render
the conviction bad. For the same reasons as those given by my
brother Harding, I am of opinion that the judgment should be
annulled.
Haeding J. : Let the prisoner be discharged, and an entry
made on the record and on the indictment that the prisoner
ought not, in the judgment of the Judges, to have been convicted
of the felony aforesaid.
Solicitors : Chambers, Bruce dh McNab.
Harding J.
[Full Couet.]
REGINA V. BUNNEY.
[6 Q.L.J. 80.— Note.— See now s. 297 ot Criminal Code. Sec. 49 of Criminal
Piactice Act, 1865, Is repealed, see now s. 688 of Criminal Code. Offenders'
Probation Act of 1886 is repealed, see now s. 656 of Criminal Code.]
Crown case reserved — Manslaughter — Contributory negligence.
Where the death of a person is caused by the culpable negligence of the
prisoner, the fact that the deceased could have escaped by the exercise of
reasonable care is no answer to a charge of manslaughter.
Crown Case Reserved by His Honour the Chief Justice,
under s. 49 of The Criminal Practice Act, 1865.
The case stated that Frederick Bunney was tried at the Brisbane
■Criminal Sittings, held on the 12th March, on a charge of the
manslaughter of John Plastow. The alleged unlawful act or
omission causing death was culpable negligence in driving a
■spring cart along a public highway. It appeared from the evi-
dence that Plastow, who was an aged and somewhat infirm man,
. and who habitually walked with the aid of a stick, was run over
■on a clear, starlight night in the middle of the road by a spring-
cart which was being driven by the prisoner in the opposite
•direction to that in which Plastow was walking when last seen
■alive, a few minutes before the collision. There was sufficient
■evidence that Plastow' s death resulted from culpable negUgence
on the part of the prisoner. For the defence it was suggested that
1894.
April
Griffith G.J.
Chubb J.
Real J.
266 QUEENSLAND JUSTICE OF THE PEACE.
Eegina r. Bonnet the deceased was under the influence of Uquor, and had by his own
~ negUgence contributed to the injury which was the cause of death-
Evidence tendered to establish this defence was objected to by
the Crown Prosecutor, but admitted as being relevant to the
question of the degree of the prisoner's negligence, the learned
Judge stating that he would put a specific question to the jury
as to the existence of contributory negligence, of which there
was some slight evidence. Two questions were accordingly put
to the jury : — 1. Was Plastow's death caused by the culpable
negligence of the prisoner ? 2. Was there contributory neghgence
on Plastow's part ? both of which questions they answered in the
affirmative. - It was contended by the prisoner's counsel that
these findings amounted to a verdict of not guilty, but Griffith C.J.
directed the jury, following the cases of B. v. Swindall, 2 C. & K.,
230 ; R. y. Hutchinson, 9 Cox, 555 ; E. v. Jones, 11 Cox, 544;
and JR. v. Kew, 12 Cox, 355, that upon the findings they should
find the prisoner guilty, which they accordingly did. At the
request of the prisoner's counsel he reserved for the opinion of
the Supreme Court the question whether he ought to have directed
the jury to find a verdict of not guilty. The question for the
Court was whether he was right in directing the jury that on the
facts as found by them the prisoner was guilty of manslaughteir
or whether he ought to have directed a verdict of not guilty. His
Honour sentenced the prisoner to four months' imprisonment
in Brisbane Gaol, but suspended the execution of the sentence
under The Offenders' Probation Act of 1886, and prisoner had
been discharged from custody upon recognisances under the
provisions of that Act.
Sydes, for the prisoner, cited Beven on Negligence, 128 ; E. v.
Birchall, 4 F. & F., 1087 ; R. v. Hutchinson, 9 Cox, 555 ; R. v.
Mastin, 6 C & P., 396.
Power, for the Crown, was not called upon.
Chubb J. Chubb J. : In this case the prisoner was charged with the
manslaughter of one Plastow, and the manslaughter was alleged
and proved to have been caused by the culpable negligence of
the prisoner. Two questions were put to the jury on the point
raised by the prisoner's counsel as to whether contributory
negligence would be a defence to a charge of manslaughter by
negligence. The jury in answering the first question found that
the deceased's death was caused by the culpable negligence of the
prisoner. That would be sufficient, if it stood by itself, to support
CRIMINAL REPORTS, 1860-1907.
267
the case for the Crown. The second question asked was whether Eegina^.Bunney:
there was contributory negUgence on Plastow's part. The chTbb J.
difficulty which might perhaps have arisen on that question has
been disposed of by the admission made by Mr. Sydes, that this
question was to be understood to mean, and was so put to the jury
— was it possible by the exercise of reasonable care for the deceased
to have got out of the way ? If the jury had answered the
question in that form affimatively it would not have been an
answer. It would not be an answer in a civil case, and it certainly
would not be an answer in a criminal case. A definition of
contributory negligence will be found in Smith on the Law of
Negligence, at page 227 — " Contributory negligence in law is that
sort of negUgence which, being a cause of injury, is of such a
character that the defendant could not avoid the effects of it."
Then he goes on to say, " When the plaintiff has proved, according
to his evidence, that the act of the defendant has caused the injury
of which he complains, the defendant in his turn may prove
that the plaintiff, by his own act, contributed to cavise the injury,
and that the plaintiff might by the exercise of ordinary care have
avoided the consequences of the defendant's negligence. But
such proof is not of itself sufficient to destroy the plaintiff's claim,
and the defendant must go further and show that the plaintiff's
negligence was of such a character that the exercise of ordinary
care upon the defendant's part would not have prevented the
plaintiff's negligent act from causing the injury — that is the
sort of negligence ^^hich the law calls ' contributory negligence.' "
Now, in the case stated by the learned Chief Justice, it was stated
that there was sufficient evidence that Plastow's death resulted
from culpable negligence on the part of the prisoner. His Honour
further said there was some slight evidence as to the existence of
contributory negligence. That must be understood to mean
s Dme slight evidence that possibly deceased might have got out of
the way. As I have said before, that would not be an answer in a
ci^-il action, and it could not be taken to be an answer to an
information for causing the death by negligence of a fellow-creature.
It is possible, though I do not decide it now, that the defendant
would have been entitled to acquittal if he could have shown
that he could not have got out of the, way by the exercise of reason-
able care, but on the case as it stands I think the conviction was
right, and that the judgment ought to be affirmed.
Real J. : I am of the same opinion. I think that although it
may be that the contributory negligence which would free a man
Eeal X-
268 QUEENSLAND JUSTICE OP THE PEACE.
Begina i;. BuNNEY from civil liability would also free him from criminal liability,
Real J. that would be merely a coincidence. It would not free a man
from criminal liability simply because it freed him from civil
liability. In all the criminal cases cited by Mr. Sydes, except
one, the defence would not give protection in the Civil Court.
In the present case it was manifest that it was the negligence of
the prisoner that caused the injury, not the subsequent act of
negligence on the part of the deceased — as in the case of a man
stopping in front of a runaway engine. The injury there would
be due to the negligence of the deceased, because he would know
that it was out of the power of the engine-driver to stop the
engine, and still deliberately stopped in front of the engine.
In that case the jury would answer " no " to the question,
was the injury caused by the culpable negligence of the driver ?
The best test seems to be, was the injury or death caused by the
culpable negUgence of the prisoner. If it were, it seems to me
that the liability would be there. It seems to me also, as has been
pointed out by Mr. Justice Chubb, that, looking at the definition
that has been given in civil cases, the circumstances of this par-
ticular case were such that there would be no relief from civil
liability. All that was alleged in this case was that the deceased,
had he been vigilant or had he been watchful, would have been
able to see something which would have enabled him to get out
of the way ; but, as I understood counsel, it was proved, and it
was relied on, to show that deceased was negligent, that he was
in the habit of walking looking down, and it was also alleged that
he was in a state which would preclude him from exercising that
observation. That being so, it is perfectly clear that the second
part of the definition with regard to civil liability would not have
been applied to that. It might be that he was guilty of negUgence
in placing himself in that state, but that was not an act of neglig-
ence causing death or injury whatsoever had prisoner taken
ordinary care. So that even if the definition of negligence which
Mould involve criminal liability is to be taken to be precisely the
same as that which involves civil liability, there would still be no
relief of liability in this case, and the conviction would have to be
affirmed. Of course I do not say whether it is or is not the same.
It seems to me that if it is the same it is only a coincidence, and
criminal liability is not to be measured by the civil liability,
although it might possibly be that the two ran precisely in the
same lines on some occasions.
-Griffith C.J. Griffith G.J. : I am of the same opinion. An attempt was
CRIMINAL REPORTS, 1860-1907.
2G9
made at the trial to set up that the rules relating to civil actions BbQ'na t). BnuNEY
for negUgence appUed to a prosecution for manslaughter. In Griffith C.J.
deciding, as I did, I followed the authorities, which, with one
exception, and that only the dictum of a very learned Judge,
were all to the contrary. I am of opinion that the principles
which would excuse the defendant in an action for negligence are
not the principles which should apply in considering whether the
prisoner was guilty of manslaughter. I entirely agree with Mr.
Justice Real that, though it might sometimes happen that a man
would be free from both criminal and civil liability, it by no means
follows that he would be free from criminal liabiUty because he
was free from civil responsibility. I am of opinion that the ques-
tion of contributory neghgence was entirely irrelevant, and that
the real question to be tried by the jury was — was the death
caused by the culpable negligence of the prisoner ? In consider-
ing that, I thought that the evidence relied upon as showing
contributory neghgence was admissible, though irrelevant as
raising a substantive defence in respect of negUgence. I think
that that is perhaps not the best term to be used, but I used it as
the term employed in the cases cited. I think a better word
might be used, if it were necessary to leave the question to the
jury, but apparently it was not necessary to do so. The con-
viction will be affirmed.
SoUcitor : J. B. Price.
[Full Cottet.]
REGINA V. HOUSTON.
[6 Q.L.J. 145.— Note.— 54 Vic, No. 5, is repealed, see now s. 1 of Code, definition
of " clerli or servant," and ss. 568 (1) and 641 of Code. 36 Vie., No. 8, s. 1,
is repealed, see now s. 396 of Criminal Code. As to sentence on Crown Case
Reserved, see now s. 668 of Criminal Code.]
Crown case reserved — Embezzlement — General deficiency — 54 Vic,
No. 5—36 Vic, No. 8, s. 1 — Respite of sentence.
A member and paid secretary of an Oddfellows' Lodge may be convicted of
embezzling sums of money, the property of the lodge.
On a-oharge of embezzling specific sums, evidence of a general deficiency in the
accounts is admissible.
SemUe, that, when a prisoner is convicted, and a case reserved fov the opinion
1894.
itigust.
Griffith C.J.
Harding J.
Real J.
270
QUEENSLAND JUSTICE OP THE PEACE.
Kegina v. o£ the Full Court, the sentence should either be respited or bail allowed until
Houston. judgment is given.
Crown Case Resbeved by Noel D.C.J, for the opinion of the
Court on certain points raised in the course of the trial of Robert
James Houston, at Cooktown, on 1st June last. Prisoner was a
member, and the paid secretary, of the Loyal Captain Cook
Oddfellows' Lodge, Cooktown. He was charged in three separate
counts with embezzling specific sums of money, the property of the
lodge. He was tried, found guilty, and sentenced to three years'
penal servitude. The questions submitted to the Court were
whether the Judge was right in admitting in re-examination
evidence as to a general deficiency in the accounts, the prisoner
being charged with the embezzlement of specific sums ; and
whether, being a member of the lodge, the prisoner could be
convicted of embezzlement of its funds.
Harding J. pointed out that authority was given in the Act
to either respite or postpone sentence pending an appeal. That
power had not been exercised in this case, and it seemed to him
that if the same course was always followed a man might be made
to serve a sentence when the point to be decided was whether he
was guilty or not.
Dickson for the Crown.
■Griffith C.J. Griffith C.J. : The first point raised in the case is whether
evidence of a general deficiency is admissible on a charge of
embezzling a specific sum. In this case evidence of a general
deficiency ^vas tendered in the examination-in-chief and rejected
by the learned Judge, btit afterwards admitted in re-examination.
Whether, if the evidence had been properly rejected in chief, it
could under the circumstances have been admitted in re-examina-
tion is a matter on which I express no opinion. But I know of
no authority for holding that evidence of a general deficiency is
not admissible in chief on a charge of embezzlement. I do not
know of any authority to that effect, even before The. Act of
1890 ; and since that Act it is quite clear that a man may be
■convicted on evidence of a general deficiency. The other point
is, that prisoner, being a member of the lodge, could not be
convicted of embezzlement of the funds. That is expressly met
by The Act of 1872, which provides that a person who, being
one of two or more beneficial owners of money, steals it, may be
convicted as if he had not been a beneficial owner. And that has
been held to apply to the case of a secretary of a joint stock com-
CRIMINAL REPORTS, 1860-1907.
271
pany although he himself is one of the directors of the company.
Both the points that have been raised on behalf of the prisoner
therefore fail. The case has not followed the rules in stating
whether the sentence was respited. The sentence was three
years' penal servitude, but it would appear that the Judge gave
the prisoner the option of obtaining bail, and authorised him to be
-admitted to bail. Prisoner was, however, unable to get bail.
If the case had followed the rules, no difficulty would have arisen
on this point. I do not, however, think it necessary to express
any opinion whether the Judge was bound either to respite the
■sentence or to postpone execution of it. I think that in most
■cases the Judge should do so, if not in all. If the case had
precisely followed the rules, it would have, I think, been un-
necessary to say anjiihing on the subject. The conviction ought
to be upheld.
Harding J. : I am of the same opinion. With regard to the
question of respiting judgment, I think that, when a Crown
■case is reserved under The Criminal Practice Act, s. 48, the Judge
should either respite the execution of the judgment or allow
the prisoner to go out on bail ; and if bail is not procurable, then
he should be respited in such a manner that he should not undergo
any part of his punishment. The question does not directly
arise, and when it does arise, it will probably be in very different
proceedings from this. That is my opinion ; and that is the
course which should be followed.
Real J. : I am of the same opinion. I desire to express no
opinion on the necessity of the Judge respiting or postponing
sontence, except to say that in ordinary circumstances I feel it
-would be quite proper to do so. Whether it would be bad if the
Judge did not do so, I express no opinion.
Conviction affirmed.
Eeqina v.
HODSTON.
Griffith C.J.
Harding J.
Real J.
272
QUEENSLAND JUSTICE OF THE PEACE.
1894.
August.
Griffith C.J.
Harding J.
Real J.
[Full Coukt.]
REGINA V. ROYLE.
[6 Q.Ii.J. 146.— Note.— 29 Vic, No. 6, s. 76, is repealed, see now s. 1 of CriminaE
Code, definition of " money," and ss. 566 (5), 568 (1), and 641 of Criminal
Code.]
Larceny Act of 1865 (29 Vic, No. 6), s. 76— Embezzlement-
Si Vic, No. 5, s. 1.
When an offence under s. 76 of The Larceny Act of 1865 relates to a valuable
security, it is sufficient to allege the embezzlement to be of money without
specifying any valuable security; and the allegation, so far as it relates to a,
valuable security, will be proved if the ofiender is proved to have embezzled any
amount or part of the particular valuable security.
It is not necessary to prove that the deficiency unaccounted for did not consist
entirely of securities where the sum is made up of money and securities.
Since 54 Vic, No. 5, it is immaterial that more three separate sums wer&
included in the deficiency.
B. V. Keena, L.B. 1 C.C.R. 113, discussed.
Cbown Case Resekved by Paul D.C.J.
A. W. Royle was employed as cashier and accountant by
Prosser, Taylor & Co. His duties as cashier were to receive-
all moneys, cheques, drafts, &c., paid to the firm, and deposit the-
same in the bank to the firm's account. His duty as accountant
was to keep the books, and especially the general cash-book,
bank deposit book, and demand orders deposit book, and to maker
proper entries in them of receipts and deposits. A Mr. DeightorL
was also in the employ of the firm as assistant book-keeper, and
his duty was, under prisoner's directions, to write up the general
cash-book from the rough cash-book, which contained entries of the
receipts of all moneys received by the firm from day to day.
The employees had authority to receive money in the warehouse-
for the firm in the way of business, such as for cash sales, &c., and
their duty was to make entries of such payments in the rough
cash-book and hand the money to the prisoner as cashier,
Deighton received money as well as cheques, &c., in this way,,
and he always handed the same to the prisoner, and so handed
him money, cheques, &c., in April last and during previous months..
The entries of amounts received in the general cash-book for the
month of April were in Deighton's handwriting, except three
which were written by the prisoner, but all the entries in that
book of deposits made in the bank for that month were wTitten
l)y the prisoner. In addition to the entries of receipts in the
CRIMINAL REPOETS, 1860-1907. 273
general cash-book, taken by Deighton from the rough cash-book, Eeoina v. Eoyle.
he also received items for entry from the prisoner, but where the
prisoner obtained them Deighton did not know. Mr. Horstmann,
who was the auditor for the firm, discovered, on examining the
books in May last, and especially the general cash-book, that
there appeared, according to that book, a general deficiency in
the month of April of £794 4s. 6d., and that the short deposits
commenced in November last. The general cash-book for that
month showed £8,444 18s. lOd. as received, and £7,650 as de-
posited, showing a deficit of £794 4s. 6d. The larger proportion
of the entries of the amounts purporting to have been received
according to the general cash-book, not only in April but for other
previous months, would. His Honour said, consist of money
orders, cheques, and drafts, but all were entered as cash in the
cash-books. Mr. Horstmann could not discover from the books
the individual or specific items of which the deficit was composed,
or discover any specific amount received by the prisoner during
April or any previous month as not having been deposited ; but
the deficit comprised more than three items, and he (Mr. Horst-
mann) beheved comprised about thirty or forty items. The
prisoner had charge of the cash-box, and after he left the firm,
on the 28th May, it was opened, and found to contain £2 lis. lid.
cash and an I.O.U. of one of the employees for £11 10s. After
this date Mr. CoUedge, manager of the firm, saw the prisoner,
and asked him if he could account for the deficiency in the books
being nearly £800. The prisoner said he knew it was something
Uke that, but that he could not account for it, nor did he benefit
by it. Mr. Rutledge, prisoner's counsel, at the close of the case
for the prosecution, asked His Honour to direct the jury to find
a verdict of " Not guilty." His Honour refused to do that,
but asked the jury to answer two questions as well as to deliver
their verdict. The jury found the prisoner guilty, and answered
the two questions in the affirmative— (1) Was the amount of the
general deficiency stolen and fraudulently embezzled by the
prisoner ? (2) Did that amount consist of money as well as
cheques and other securities ? The points which His Honour
reserved at Mr. Rutledge's request were : (1) That there was no
case to go to the jury, inasmuch as s. 1 of the Act, 54 Vic, No. 5,
was Umited to money and did not provide for proof of the em-
bezzlement of money by evidence of a general deficiency in a case
where the sums, in respect of which a general deficiency of money
was alleged to arise, consisted partly of money and partly of
274
QUEENSLAND JUSTICE OP THE PEACE.
Griffith C.J.
Eegina 0. EoYLB. valuable securities, such as cheques, drafts, and orders for the
payment of money not shown to have been converted into money
by the prisoner. (2) That there was no evidence that any money
had been paid to or received by the prisoner. (3) That the evi-
dence showed that if any sums of money had been paid to and
received by the prisoner, more than three such sums were included
in the general deficiency. His Honour deferred passing sentence
until the Full Court had given a decision on the points reserved.
Dickson for the Crown ; Rutledge for prisoner.
Gkiffith C.J. : The prisoner was charged with embezzling
the sum of £794 from his employers ^ On his trial it was shown
that he was the cashier and accountant of his employers. His
duties are set out in the special case. The general cash-book
was intended to show all the money received by him. Entries ,
were made in it by clerks under his superintendence. The
book was not for the most part in his handwriting, but during
the month of April last there were three entries in his handwriting.
In the same book were entered statements of the amounts
deposited in the bank, which for the month of April were aU in his
handwriting. The books were kept under his supervision.
After he had left the firm's employ, and the books had been
examined, he was informed that there was a deficiency of nearly
£800. He said he knew it was something like that, but he could
not account for it, nor had he benefited by it. It had
been contended, though I doubt very much whether the
point is raised by the case, that there was no evidence
that he received any amount larger than was shown to have
been deposited in the bank. But I infer from the evidence
that, though the entries in the books were not all in the
prisoner's handwriting, they were all made with his cognisance
and knowledge, and therefore they operated as an admission
against him. I draw that inference from all the facts stated,
not as a necessary inference, but an inference which the jury
might draw from all the facts as stated. I quite agree that it is
not sufiicient to show that the books were kept under his general
superintendence. It must be shown that the entries were made
with his knowledge. If, therefore, that objection was intended
to be raised, which on the face of the case stated was doubtful,
I think it failed. Mr. Rutledge relied also on the case of R. v.
Keena, L.R., 1 C.C.R., 113. The 76th section of The Larceny
Act of 1865 provides, that, on an indictment for embezzlement,
" where the offence shall relate to any money or any valuable
CRIMINAL EEPORTS, 1860-1907. 275
security, it shall be sufficient to allege the embezzlement or I^^gina r. Boyle.
fraudulent application or disposition to be of money without Griffith C.J.
specifying any particular coin or valuable security ; and such
allegations, so far as regards the description of the property, shall
be sustained if the offender shall be proved to have embezzled
or fraudulently applied or disposed of any amount, although the
particular species of coin or valuable security of which such
amount was composed shall not be proved." The grammatical
construction of that section is, that, when the charge relates to a
valuable security, it is to be sufficient to allege the embezzlement
to be of money, without specifying any particular valuable
security; and the . allegation will be sustained if the offender is
proved to have embezzled any amount, although the particular coin
or valuable security of which it is composed is not proved. The
section was taken from the much earlier Act of 7 Geo. IV., Ch. 29,
which came under the notice of the Court in the case of E. v.
Grove, 1 Mood C.C., 447, a case which has often been cited in
cases of embezzlement sought to be proved by evidence of general
deficiency. The plain, Uteral meaning of the section is, that, in
charging a man with embezzlement from his employer, it is
enough to charge him with embezzUng money, although the
evidence might show that he took money or valuable
securities or both, the term valuable securities including,
by its definition, cheques and drafts and other securities.
On this section the point raised by the prisoner's counsel is, that
what was received by the prisoner consisted partly of cheques
and partly of money, and that it was not shown that what he
embezzled, or what he failed to account for, did not consist
entirely of cheques. It is quite possible that he paid into the
bank all the cash that he received, and that he made away only
with cheques. Apart from the statute, I should be very much
incUned to think that it would be open to the jury, upon its being
proved that a man received a large sum of money — using the word
money in the ordinary sense, as consisting of cheques, notes,
orders, and coin — and made away with a large part of it, to infer
that the part which he made away with consisted in part of cash.
But, assuming that that was not so, and that it must be taken
in favour of the prisoner that all he made away with consisted
of cheques, then, there being no evidence, although the jury
found that some of the deficiency consisted of money— there
being no distinct evidence that it did consist of money— Mr.
Eutledge reUed on Keena's Case. In that case the prisoner was
276 QUEENSLAND JUSTICE OP THE PEACE.
Besina v. Boyle, accused of embezzling £16. The evidence was, that he received
Griffith C.J. a cheque for £16 for his master, and gave a receipt for it. He
did not account for it, and went away. That was practically all
the evidence. It was said to have been held that a section
corresponding to s. 76 of our Larceny Act would not justify the
allegation of the embezzlement of money when it was only a.
cheque that had been embezzled, and there was no proof that the
prisoner had ever cashed it. This Court is not technically bound
by Keena's Case, but I think we ought to follow it unless there is
some strong reason to the contrary, so far as we can discover the
ratio decidendi. It may be that Lord Chief Justice Cockburn
and A. L. Smith J. thought that the Act referred only to cases
in which what was actually taken was taken in the form of
money. One at least of the learned Judges was of opinion that the
case against the prisoner failed otherwise. It appears to me
that no clear principle can be drawn from that case applicable
to such a case as the present, where the sum alleged to have been,
embezzled comprised a mixed fund, composed partly of cheques,
orders, &c. What the prisoner took was part of a mixed fund,
comprising cheques and money, and it appears to me that the
Act expressly says that it is sufficient to charge him with em-
bezzling money. It seems to me that this is exactly the case of
R. V. Balls, L.R., 1 C.C.R. 328, where a man, having to account
weekly for the money he received, accounted for £90 only and
kept £10. Not being able to discover any clear principle in S.
V. Keena, I do not think we are bound to apply it to the present
case. I think that the present case falls exactly within the
terms of the 76th section of The Larceny Act. The third point
raised was, that the evidence showed that if any sum had been
received there were more than three such sums included in the
general deficiency. That does not seem to be an objection,
especially in the face of the Act of 1890, which provides that, " on
the prosecution of any person for the larceny or embezzlement, as
a clerk or servant, of money, the property of his master, it shall
not be necessary to prove the larceny or embezzlement by him
of any specific sum of money, if there is proof of a general
deficiency on the examination of the books of account or entries
kept or made by him or otherwise, and the jury are satisfied that
the accused stole or fraudulently embezzled the deficient money
or any part thereof." On the grounds which I have stated, I
am of opinion that the conviction ought to be affirmed.
Harding J. Haeding J. : The prisoner's duty as cashier was to receive
CRIMINAL REPORTS, 1860—1907. 277
all moneys, cheques, drafts, &c., paid to the firm, and deposit ^^^^^''^ "■ ^°''^^-
the same in the bank to the firm's credit. As accountant, his Hardii;^ J
duty was to keep the books, one being the general cash-book.
Deighton was the assistant book-keeper under the prisoner's
direction. He received moneys, cheques, drafts, &c., and he
handed to the prisoner moneys and cheques received in April.
The prisoner made entries in the general cash-book. He also
made all the entries therein of the deposits made in the bank for
April. The general cash-book for April showed a general defici-
ency of £794 4s. 6d.— £8,444 18s. lOd. being shown as received,
and £7,650 14s. 4d. as deposited. It is further stated in the
case that the larger proportion of the amounts purporting to have
been received according to the general cash-book, not only in
April but in previous months, would consist of money orders,
cheques, and drafts, but were all entered as cash in the cash-book.
Prom this I deduce that some of the money, using the word
in its largest sense, being less than half of the £8,444 18s. lOd.,
consisted of actual money (coin), but it is not necessary to require
that so much as this, or so much as £794 4s. 6d., the amount
alleged to have been embezzled, should have been paid in actual
money (coin), the mere small sum handed by Deighton to the
prisoner being sufficient to support the information if proved
to have been received by the prisoner and embezzled by him.
But this actual proof is not required under The Larceny Act
Ar/iendment Act of 1890. Here we have a general deficiency,
on the examination of the books, which, with the evidence as
above, and the answers of the jury to the judge's second
question, showed that some money (coin) had been received by
the prisoner. From that the jury were justified in concluding
that money (coin) was embezzled. The prisoner might have
rebutted this, but he did not do so. The conviction must be
affirmed.
Real J. : To convict of embezzlement, it is necessary to Keal ,J.
prove that a man received money, using the word in the widest
sense, as comprehending cheques or other valuable securities,
and that it had been misapplied or fraudulently appropriated.
Those are the two things which have to be proved, and many
circumstances have to be proved in connection with them. That
money has been received might be proved in many different
ways, but it is the first principle of our law that a man is innocent
until he is proved guilty. There might be circumstances of sus-
picion, all capable of being proved, and all tending to point to the
278 QUEENSLAND JUSTICE OF THE PE-ACE.
Eegina v. Eotle. possibility or probability of guilt ; but such evidence has to be
EeaTj. given to the jury so as to enable them to say, not that it was
probable that the prisoner was guilty, but that he is guilty. I
feel it necessary to say that, because it has been urged that there
was no evidence that the prisoner had received money to a greater
extent than he had paid into the bank. The Act of 1890 provides
that where a man has charged himself in his account in the books
kept by him, or the entries made by him with a sum of money,
and has not accounted for the whole of it, the jury, if the man
was a clerk or servant, might f3nd him guilty of embezzlement.
That section was no doubt made to simplify the method of proof,
but I do not think that it altered the law. In all cases, an
admission, or a confession, is said to be the highest proof that
can be given of a man's guilt. That was the state of the law
before the passing of the Act, and I do not think this Act has
altered it in the slightest degree. I think the term " kept by
him " was used in the sense of a person who made entries. I do not
think it altered the law that a man who did not actually make
the entries could not bind himself by admitting the correctness
of the entries. The facts of the case show clearly that the
prisoner knew and admitted the correctness of the entries on the
debit side as concerning himself. That being so, it was his duty
to see that the books were properly kept. To my mind, there
was a clear admission of the receipt of the money, and the admis-
sion of correctness was as strong as if the prisoner had taken the
books and written " correct " across the entries. The important
question in the case is, that there cannot be a conviction of
embezzlement of money because there was nothing to show the
receipt and non-paying over of cash. The section of The Larceny
Act says, that an information could properly charge a man with
embezzling money, when all he had done was to take a valuable
security. The case of R. v. Keena, which has been cited as an
authority to the contrary, is, in my opinion, quite inconsistent
with the decision which has been come to by the Court. The
two decisions cannot stand together. I do not consider it
necessary to follow that case, and am satisfied that the conviction
ought to be confirmed.
Conviction affirmed.
Solicitors : O'Shea & O'Shea.
CRIMINAL EEPORTS, 1860-1907.
279
[Full Court.]
REGINA V. McGEE.
[6 Q.L.J. 151.— Note.— 55 Vie., No. 24, ss. 3, 4, and 10, are repealed, see now s. 215
of Criminal Code. Criminal Law Amendment Act ol 1891, s. 10, is repealed,
see now ss. 578 and 583 of Criminal Code. As to indecent assault, see now
s. 350 ot Criminal Co'de. Case referred to in R. v. Cawley (7 Q.L.J. at 50, post.]
Criminal Law Amendment Act of 1891 (55 Vic, No. 24); ss. 3, 4,
10 — Rape — Want of corroborative evidence — Indecent assault.
A prisoner charged with rape on a child under twelve years of age was found
guilty of an attempt to have unlawful carnal knowledge, under s. 4 of The Act of
1891, and of indecent assault. There was no corroborative evidence implicating
the accused.
Held, that the conviction as to the attempt must be quashed, but the conviction
for indecent assault affirmed.
Cbown Case Reseeved by Harding J.
At the Ipswich. Circuit Court, held on 28th July, Ernest McGee,
who had been charged with having committed rape on a child
under twelve years of age, was found guilty of an attempt to
have unlawful carnal knowledge of such girl, and, also, of an
indecent assault. The prisoner was defended by Mr. P. B.
Macgregor, who raised the points (1) that as to the attempt
there was no corroborating evidence within the meaning of the
last paragraph of s. 4 of Tlie Criminal Law Amendment Act of 1891 ;
(2) and that the jury, having found the prisoner guilty of the
attempt, were functi officio, and the information exhausted.
His Honour reserved these points. He sentenced the prisoner
separately on each conviction, but made the sentences concurrent,
and respited execution of the judgment until the questions raised
had been decided. Meanwhile, he remanded the prisoner to
gaol. In his statement of the case. His Honour stated that the
only evidence implicating the prisoner other than the evidence of
the girl to the commission of the offence was evidence that the
prisoner was at the place and on the same morning, but before
the time when the offence was sworn by the girl to have been
committed. As to the time when it was committed, evidence
was given in support of an alibi on the part of the prisoner.
The question for the consideration of the Court was, therefore,
whether the prisoner had been rightly convicted of the crimes
charged against him, or either, and which of them.
Power for the Crown ; Macgregor for the prisoner.
1894.
August.
Griffith d.J.
Harding J.
Real J.
280
QUEENSLAND JUSTICE OP THE PEACE.
Beoina V,
McGee.
Griffith C.J.
Geiffith C.J. : The prisoner was charged with rape. By
the 10th section of The Criminal Law Amendment Act of 1891
it is provided that if on the trial of an information for rape or any
offence made felony by the 4th section of the Act the jury are
satisfied that the accused person was guilty of an offence under
the 3rd, 4th, or 6th sections of the Act, or of an indecent assault,
but are not satisfied that the accused was guilty of the felony
charged in the information, or of an attempt to commit that
felony, the jury may acquit the accused of the felony, and may
find him guilty of such other offence, or of an indecent assault.
Upon the trial of this man, therefore, he might have been con-
victed under the 3rd, 4th, or 6th sections of the Act, or of an
indecent assault, or of an attempt to commit the offence of rape.
But by the provisions of the 4th section, and the 3rd and 6th
sections for that matter, it is enacted that no person shall be
convicted of an offence under the section upon the evidence of one
witness only, unless such evidence is corroborated in some material
particulars by evidence implicating the accused. Upon the trial
objection was taken that there was no evidence corroborating
that of the prosecutrix within the meaning of the Act. The
only evidence of a corroborative nature was, putting it at the
highest, that the accused and she were alone together in the house
where they both lived. They had not gone there for any par-
ticular purpose. They both hved there ordinarily, and had
been Hving there for some time. For my own part, I do not think
that that is corroborative evidence of an attempt to commit
this kind of offence upon her. I think, therefore, that there was
no corroborative evidence, and under these circumstances the
prisoner could not be convicted under the 3rd, 4th, or 6th sections
of the Act. But the rule requiring corroborative evidence does
not apply to the charge of indecent assault. The learned Judge
told the jury that he could see no corroborative evidence, and
advised them to acquit the prisoner of the attempt, and left it to
them whether he ought to be found guilty of indecent assault.
The jury, probably, thinking themselves wiser than the learned
Judge, and beheving the girl's evidence, found that he was
guilty of an attempt to commit an offence on a child under the
age of twelve years, and they also found him guilty of indecent
assault. The second objection was, that these two findings
could not stand together, and that under s. 10 the jury must find
the prisoner guilty of one of the offences enumerated in the
statute, or of an indencent assault, but could not find him guilty
of two offences, and that the verdict finding him guilty of two
CRIMINAL REPORTS, 1860-1907.
281
offences was, therefore, bad altogether. That was supported by
a very ingenious argument founded upon the words of this section,
which might be said to point to the conclusion that the jury must
make up their minds of what offence the accused was guilty, and
say that he was guilty of one or another, but could not find him
guilty of both. I think that in construing this section we ought
to have regard to the general law and rules of the Court relating
to criminal pleadings before the Act was passed. One of the
rules at common law was, that a plaintiff could make his case in
as many counts as he pleased, and if he succeeded in establishing
one of them to the satisfaction of the jury, he was entitled to
judgment on that. If damages were awarded jointly on a good
and bad count the verdict would not stand. In criminal pro-
ceedings it was competent for the Crown to join as many charges
as they thought fit in the same indictment — being all either felony
or misdemeanour — and they were treated theoretically as charges
of different offences. But that was mitigated by the rule that if
a man was really charged with more than one act as a crime, the
prosecutor could be called upon to elect which act he would pro-
ceed upon. Theoretically, as many charges might be included as
the prosecutor thought fit ; and, theoretically, if the jury gave
a general verdict, it would be good. And it was not uncommon
to combine charges of different offences in the same information
either for misdemeanour or felony. That being the general
practice under the old rules, the Court by degrees, for the purpose
of saving trouble and simplifying matters, introduced a rule that,
upon the charge of an offence which necessarily involved a minor
offence, the jury might find the accused guilty of the minor
offence. That was in the first year of Queen Victoria, I think.
That practice was further extended until brought to its highest
development in this Act now before the Court. The question
now is. What construction should be placed upon that new rule
of procedure ? Was an information, although containing only
one count, to be treated as containing separate counts for each
separate offence of which the accused might be found guilty
under the one charge ? For some purposes I think that is so.
Mr. Justice Harding in this case took the verdict of the jury on
each charge involved in the indictment. Other judges are
content to take the verdict of guilty on one charge and to treat
the verdict as one of not guilty on all the rest. The question,
then, arises whether it was competent under these circumstances
to find the prisoner guilty of more than one offence. It seems to
me that the principle intended to be introduced by the Acts
Begina u.
McGee.
Griffith C.J.
282
QUEENSLAND JUSTICE OF THE PEACE.
Eegina v.
McGee.
Griffith C.J.
Harding J.
Eeal J.
beginning with the last year of William IV., down to the year
1891, was to introduce into the criminal procedure an analogous
system to that provided for by the rules of common law procedure
— «o that the jury might, on a charge of this sort, if they found
all the necessary ingredients of a criminal offence, give- their
verdict upon it, and in addition find other ingredients which would,
together with the first, constitute a criminal offence of a higher
degree. If that is the correct view, the two findings could not
vitiate one another. A good finding supported by the evidence
would not be vitiated by a finding unsupported by the evidence.
I cannot find any authority, nor has any been brought under my
notice, showing that a verdict, supported by evidence that a man
was guilty of an offence, would be vitiated by a finding that he
was also guilty of some other offence, which was not warranted
by the evidence ; nor do I know any reason why the verdict on
one count should be taken in priority of the other. One of them
was warranted by the evidence ; the other was not. Under these
circumstances, I do not think the finding warranted by the evi-
dence was vitiated by the finding not warranted by the evidence.
For these reasons, I am of opinion that the conviction for the
attempt should be quashed, and that for the indecent assault
affirmed. I should Uke to offer one other observation in passing —
Under the old rule, where there were several counts in the in-
formation, they were treated as separate charges, and the sentence
upon them might be cumulative. They were, in point of fact,
different counts ; and there was nothing on the face of the infor-
mation to inform the Court that the charges were all in respect of
the same act. But where the same practical result, so far as
regards the capacity of the jury to convict, arises under the
statutory power, to which I have referred, the circumstances are
different, because there the Court knows, on looking at the
information itself, that it is only one act that is charged. It is
not several charges, but only one ; and although a man might
be convicted on such an information of various crimes technically
different, yet the Court knows that only one offence was charged,
so that in that case, I think there could be only one sentence ;
and if one offence was graver than the other, I think the minor
offence would merge in the greater one.
Harding and Real JJ. concurred.
The conviction for the attempted criminal assault was quashed,
and that for the indecent assault affirmed.
Solicitor for prisoner : P. A. 0' Sullivan.
CRIMINAL REPOETS, 1860-1907.
283
[Full Couet.]
BLACK V. TURNER.
[6 Q.L.J. 153.— Note.— 29 Vic, No. 5, s. 26, is repealed, see now ss. 22, 469, and
476 of Ciimlnal Code. Case followed in Keable v. Clancey, 3 Q.J.P.R. 206,
1909 S.R.Q. 345).]
Injuries to Property Act of 1865 (29 Vic, No. 5), s. 26 — Bona fide
claim of right — Wrongful admission of evidence.
A bona fide claim to use land as a highway ousts the jurisdiction of justices on
an information for malicious injury to a fence erected across such land.
Quaere, whether a map of the locus in quo, purporting to be drawn by a surveyor
who is not called as a witness, can be admitted in evidence if objected to.
Oedee nisi to set aside a conviction of Justices at Mount
Morgan, against W. Turner, under s. 26 of The Injuries to Property
Act of 1865, for unlawfully and maliciously destroying a fence,
whereby the defendant was ordered to pay a fine of one guinea,
thirteen shillings damages, and two pounds for costs.
The grounds for the rule were : (1) That the evidence disclosed
no offence ; (2) that there was no evidence that the defendant
acted unlawfully and maliciously ; (3) that the defendant acted
under an assertion of a bona fide claim of right ; and (4) that
evidence was wrongfully admitted.
It appeared that a fence had been erected by the trustees of
the Mount Morgan Racecourse across a track, which it was alleged
had been in use for some years as a highway. The defendant,
who had been in the habit of driving along this track, found it
one day closed by a fence, he pulled down about 35 feet and
made a way for himself. He was prosecuted for .maliciously
destroying the property of the Mount Morgan Racing Club, and
set up as a defence that the track was a public road, and that he
had a right to remove the obstruction.
It was also contended that the bench wrongfully admitted what
purported to be a plan of the locality.
Lilley for appellant ; Feez for respondent.
Gkiffith C.J. : The appellant was charged with having un-
lawfully and maliciously destroyed a fence, the property of the
trustees of the racecourse at Mount Morgan. The defence
that he set up was in substance that there had been for many
years a road leading through the racecourse reserve, and that
that road had by long usage become dedicated as a public highway.
In the present case there was no doubt that this road had been
1894.
August,
Griffith a J.
Harding J.
Real J.
Griffith C.J.
284
QUEENSLAND JUSTICE OF THE PEACE.
Black v. TnRNER. used for many years. It was not a road surveyed, or of any
Griffith C J, definite width, but it was a track that led through the land.
Whether it had been dedicated as a highway, or whether a road
could be dedicated by mere user under- such circumstances, were
interesting questions ; but, at any rate, there was no doubt that
under these circumstances a man might honestly believe that
such a right did exist. In my opinion, a bona fide claim of right
to use a highway is a sufficient claim of right to oust the jurisdiction
of the Justices. If it were a frivolous claim, the Justices would
probably not be bound to stay their hands. But I do not think
that the Justices had any evidence before them to suggest that
the claim of right set up was not bona fide. I therefore think
that the conviction ought not to have been made, and that the
rule must be made absolute. On the question of the admissibihty
of evidence, not having heard argument on both sides, I express
no opinion.
Harding J. Harding J. : I agree with the learned Chief Justice in his
opinion that reasonable evidence of a bona fide claim of right-of-
way was raised in the case, and upon it being given, the Magis-
trates' jurisdiction was ousted. I think that the rule must be
made absolute, also, on the ground that evidence was wrongly
admitted. The evidence said to have been wrongly
admitted was a map of the locits in quo. That was map D,
which purported to have been dra-mti by Frederick Byerley,
licensed surveyor, Rockhampton ; but Byerley was not called,
and so far as that was concerned it was secondary evidence of his
having made it. If he had been called, and the plan had been
tendered, the proper course for the counsel for the defendant
to have followed would have been to ask how it was made up.
The surveyor would at once have been bound to say that it was a
copy of another map, which itself had been compiled from notes
on the field, so that either map would not be primary evidence,
and in no case could this map be evidence at all. It was not
receivable evidence ; and after reading the evidence and listening
to the argument, I am of opinion that if I had been deciding the
case, the map would have materially affected my judgment.
Seeing that the Magistrates had visited the loctis in quo and took
the plan with them, I can only infer that it affected their decision.
It has been decided by the Court that in a criminal prosecution
it is the duty of the Judge to keep out illegal evidence, and that
if the case goes to the jury with illegal evidence a conviction will
CRIMINAL REPORTS, 1860-1907.
285
not stand. This evidence was wrongly admitted, and on that ^^"^ "• Tueneb.
ground also the rule ought to be made absolute and with costs. Harding J.
Real J. : I concur with the judgment of the learned Chief
Justice. I express no opinion on the wrongful admission of
evidence.
Conviction quashed with costs.
Solicitors for appellant : Bees R. di S. Jones.
Solicitors for respondents : Chambers, Bruce <fc McNah.
[BtTNDABERG CbIMINAL SITTINGS.]
REGINA V. ROBINSON.
[6 Q.L.J. 184.]
Prisoner committed for trial hut unable to he brought to Circuit
Town through illness — Form of Bench Warrant.
An information was presented against the accused for forgery
and uttering. The accused did not appear, and the Crown
Prosecutor, after reading an affidavit of the Government Medical
Officer that the accused was in Brisbane Gaol and was unable
through iUness to appear, appUed for the issue of a Bench Warrant.
The Chief Justice directed the application to stand over till the
close of the Sittings, and on its renewal at that time a Bench
Warrant was granted in the following form : —
Queensland.
IN THE CIBCtriT COURT AT BUNDABERG.
To all Police Officers within the Colony of Queensland, and
to the Keeper of the Gaol at Bundaberg in the said Colony :
These are to require and in Her Majesty's name to charge and
command you the said Police Officers upon sight hereof to bring
before me at the Circuit Court now holden at Bundaberg in the
said Colony Thomas Robinson against whom an information
has been presented before me in the said Circuit Court for forgery
and uttering a forgery if the Court be then and there sitting,
and if not to convey the said Thomas Robinson to the Gaol at
Bundaberg aforesaid and deliver him to the keeper thereof
together with this Warrant. And these are further to command
1894
5th October.
Griffith G.J.
286
Eegina v.
kobikson.
QUEENSLAND JUSTICE OF THE PEACE.
you the Keeper of the said Gaol to receive the said Thomas
Robinson into your custody into the said Gaol and him there keep
until the next Sittings of the said Circuit Court at Bundaberg
aforesaid or until he shall thence be delivered by due course of
law.
(Indorsement.)
I authorize that the within-named Thomas Robinson be bailed
by recognizance himself in the sum of £80 and two sureties in the
sum of £40 each.
1895.
Febrvary.
Griffith G.J.
Harding J.
Real J.
[Full Court.]
REGINA V. CONNELL.
[6 Q.L.J. 209.— Note.— As to embezzlement, see now s. 398 (VI.) of Criminal Code.
57 Vic, No. 1, is repealed by 4 Ed. Vn., No. 6. Case referred to in B. v.
Whitehouse, 6 Q.L.J. 313, post.)]
Criminal law — Embezzlement — Incorporation of company — 57 Vic,
No. I.
The Court will take judicial notice of the existence of an incorporated company
mentioned as such in a statute.
On a charge of embezzlement from such a company it is unnecessary to prove
its incorporation.
Ckown. Case Reserved by Noel D.C.J.
The prisoner was charged at Croydon with embezzling the
funds of the Queensland National Bank Limited. No evidence
was given of the incorporation of the bank. The learned Judge
refused to direct on that account that there was no proof that the
prisoner was employed by the Queensland National Bank
Limited, and that there was no proof of the existence of such an
institution.
The prisoner was convicted, but the points were reserved for
the FuU Court. '™'
Power, for the Crown, cited Regina v. Langton (2 Q.B.D. 296).
Ball for prisoner.
As there was some doubt whether the word limited was con-
tained in the information describing the bank, the case was
referred for amendment.
OEIMINAL REPORTS, 1860-1907.
287
Gbiffith C.J. : By the case as now amended it appears that
the prisoner was indicted for embezzlement as a servant of the
Queensland National Bank Limited. The evidence showed
that he was in the employ of the Queensland National Bank
Limited, as teller. The point taken by the prisoner's advocate
was that there was no evidence that the Queensland National
Bank Limited, was a duly incorporated joint stock company.
What conclusion might be come to apart from the statute 57
Vic, No. 1, it is not necessary to say. That statute recognised
the institution called the Queensland National Bank Limited,
as a duly incorporated joint stock company carrying on business
in Queensland. That is an Act of which the Court is bound to
take notice. It appears to me that the statute completely
answers the objection, and the conviction must be afifirmed.
Harding J. : To support a charge of embezzlement it is
necessary to prove the ownership of the property embezzled.
Now the owner of property is either an actual or an artificial
person having power to deal with it — actual such as a human
being, artificial such as an entity constituted and enabled by law
to deal with it. In no other way can property form the subject
of ownership. A dumb animal cannot, nor can an inanimate
thing own property. A number of persons cannot nor can a single
person not incorporated or so enabled by Act of ParUament own
property by a name. It belongs to them or him jointly and
severally as the case may be. If a man transfers his property
to an inanimate thing, it does not pass to that thing. In the
present case it was not at first stated that the Queensland National
Bank was a company incorporated or otherwise able or entitled
to hold property by the name of the Queensland National Bank.
As the case was left it might have been simply a trade name
or an individual or a number of persons unincorporated. Conse-
quently, the ownership of the property would not have been
found, and the prisoner would have been wrongfully convicted,
there being no evidence that such an institution existed in law.
As the case has come back it appears from the information that
the prisoner was charged as the employe of the Queensland
National Bank Limited, and that it was the property of that
bank and not of a company called the Queensland National
Bank he was .charged with embezzHng. The Judge's notes
of the case show that there was evidence of those facts, and of
the baiik as carrying on business. The production of the certifi-
cate of incorporation is not necessary when it is found that the
Rbgisa v.
CONNELL.
Griffith C.J.
Harding J.
?88
Begina v.
CONNELL.
, Harding J.
Eeal J.
QUEE^fSLAND JUSTICE OP THE PEACE.
company has carried on business as such. The Court takes
judicial knowledge of the existence of the Queensland National
Bank Limited, as an incorporated company, the company being
recognised by statute as such. The company being in existence
and the prisoner engaged as an employe of that company, there
was consequently evidence to go to the jury that the company
in respect of whose money he was charged with having embezzled
was the same company as that mentioned in the Act of Parlia-
ment 57 Vic, No. 1.
Real J. concurred.
Conviction affirmed.
Solicitor for prisoner : F. J. Lyons.
[Bbisbane Criminal Sittings.]
REGINA V. VOS AND OTHERS.
[6 Q.L.J. 215.— Note.— See Form No. 360, Part I., s. III., ol Schedule to Criminal
Code, Wilson & Graham's Code, p. 480.]
1895. Criminal law — Jurisdiction — Judicial notice — Pacific Islanders
15th March. Protection Act 1872 (35 and 36 Vic, c. 19), s. 9—38 and 39
Harding J. Vic, C. 51, S. 6.
On an information against certain prisoners for an alleged breach of s. 9 of 35
and 36 Vie., o. 19, a question arose whether the island of Malayta was part of Her
iKlajesty's dominions or within the jurisdiction of any civilised Power. The
presiding judge directed a letter to the Governor of Queensland, and received a
reply that it was not, but that it was under the protectorate of Her Majesty the
Queen. From an Order-in-Counoil, under s. 6 of 38 and 39 Vic, u. 51, setting out
the limits of dominion, it appeared that Malayta was not part of Her Majesty's
dominions, nor within the jurisdiction of any civilised Power.
Harding J. held he had sufficient information to take judicial notice of the
position of the island, and decided that the court had jurisdiction to try the
information.
Information against Joseph Vos, George Thomas Olver,
Michael Joseph Curry, Alfred Cuthbert Hall, Arthur Absalom,
and Alfred Dowsett, under 35 and 36 Vic, c. 19, s. 9.
Byrnes A.G., Power, and Lukin, for the Crown.
Feez for the prisoners.
CRIMINAL REPOETS, 1860-1907. 289
Byrnes A.G., before opening the case for the prosecution, R^oina f- Vos
stated that the question of the extent of Her Majesty's dominions
would probably arise, and submitted a reference should be made
to His Excellency the Governor, as Her Majesty's representative
in the colony, to inform the Court whether the island of Malayta
was within Her Majesty's dominions or within the jurisdiction of
any civilised Power. Reference was made to Mighell v. Sultan
of Johore (1894, 1 Q.B. 149) ; Be Carlo Pedro (5 Q.L.J. 22),
Taylor v. Barclay (2 Sim, 221), Foreign Jurisdiction Act, 1890
(53 and 54 Vic, c. 37), s. 4.
The jury were then impanelled.
At a later stage in the case Harding J. directed a question for the
Governor, " Is the island of Malayta, which is an island in the
Pacific Ocean, within Her Majesty's dominions, or within the
jurisdiction of any civiUsed power ? " A reply was received in
the negative. A copy of the Queensland Government Gazette,
dated the 21st May, 1892, containing the regulations under The
Pacific Island Labourers Acts ; a copy dated 31st August, 1872 ;
and a copy dated 16th November, 1875, containing a procla-
mation of 35 and 36 Vic, c 19, were put in evidence.
Feez submitted there was no case to go to the jury, and asked
for a direction to the jury to return a verdict of not guilty against
all the prisoners, on the ground that there is no evidence that the
island of Malayta is not within Her Majesty's dominions, nor
within the jurisdiction of any civilised Power ; and also on the
ground that there was no evidence that the islanders or any of
them were carried away without their consent. He cited Taylor
on Evidence, s. 17.
Habding J. : The question has arisen whether the island of Harding J.
Malayta is not in Her Majesty's dominions, and not within the
jurisdiction of any civilised Power. Whether that is for me as a
Judge declaring the law, or whether it is a question of fact to
be ascertained by the jury, has been raised by Mr. Feez. He
has contended that it is not a matter of judicial knowledge, or
amongst the things which are judicially taken notice of. The
American writer, Greenleaf on Evidence, Vol. III., 282, whose
book was taken as the basis of the EngUsh book by Taylor,
one of the leading books on evidence has thus stated the matter.
" The principle on which judicial notice is taken is the universal
notoriety of the facts in question. These are sometimes distri-
buted into two classes, composed of those things of which the
290 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. Vos Court of its own motion takes notice, and those of which it does
AND OtBBSR
not take notice, unless its attention is directed to them by the
Harding J. parties." If the Court is embarrassed, it may take or refuse to
take judicial notice of a fact which forms one of the subjects of
judicial cognisance, and unless the party calling upon the Court
to take such judicial notice produces the books and documents
which satisfy him as to its existence. But the Judge may inform
himself of such facts in any way which he may deem best in his
discretion, so that in this case I might have stopped the case
until the Attorney-General had proved to my satisfaction the
fact of which I am required to take judicial notice — namely,
that these islands are not in Her Majesty's possession or within
the jurisdiction of any civilised Power. I might have stopped
the case until he had produced evidence of that, or I might have
known it, and if I did not know it I might have informed myself
in any way which I deem best in my discretion. I am not obUged
to take judicial notice of any of those matters of fact, but I am
at liberty to do so at my discretion. The text writers say that
the exercise of that discretion depends upon the nature of the
subject usually involved, and the apparent justice of the case.
I have taken two courses in this case, each for the purpose of
satisfying myself, and they have both brought me to the same
conclusion. I have a letter under the hand of His Excellency
the Governor, Sir Henry WyUe Norman, signing himself, not
only as Sir Henry WyUe Norman, but as Governor of Queensland,
dated from Government House as late as the 12th March in this
present year. His Excellency has informed me that he is able,
from his official knowledge, to inform me that the island of Malayta
is not part of the Queen's dominions, and not within the juris-
diction of any civilised Power, but that it is under the protectorate
of Her Majesty the Queen. That, I think, alone would be suffici-
ent for me to base my opinion on ; but I further support my
knowledge by reference to the Pacific Islanders Protection Act of
1875, being 38 and 39 Vic, c. 51, s. 6, which says, " It shall be
lawful for Her Majesty to exercise power and jurisdiction over
her subjects within any islands and places in the Pacific Ocean,
not being within Her Majesty's dominions, nor within the juris-
diction of any civiUsed Power, in the same and in as ample a
manner as if such power or jurisdiction had been acquired by the
cession or conquest of territory, and by Order in Council to create
and constitute the office of High Commissioner in, over, and for
such islands and places." In the case of The King v. Daniel
CRIMINAL REPORTS, 1860-1907.
291
Holt in 5 Term Reports, p. 436, at p. 442, it is stated that " the
Gazette is of itself prima facie evidence of matters of State and
of the pubhc Acts of the Government. It is pubhshed by the
authority of the Crown ; it is the usual way of notifying such
Acts to the public ; and therefore is entitled to credit in respect
of such matters. Lord Holt held it a high misdemeanour to
pubhsh anything as from royal authority which was not so.
In a late case at Lancaster, upon an occasion similar to the present.
Justice BuUer held that the Gazette is evidence of the King's
proclamation contained therein. So it has been held by all the
Judges that the articles of war printed by the King's printer
are good evidence of such articles." Now, it being a high mis-
demeanour to publish as from the royal authority that which
has not the royal authority for its publication, and anything of
royal authority published by persons that have that authority
and profess to publish by royal authority is receivable as evidence,
I consequently turn to a publication of the English Government
which on the bottom of it has " published by authority." This
is a compilation of statutory rules and orders issued in the year
1893, and at page 312 I find the Pacific Order-in-Council of 1893.
Now that order specifically recites the section of the Act which I
have read, and that it is made in pursuance of that Act and other
Acts. Consequently anything contained in that order and
anything recited in the Acts of Parliament are to be taken by the
Courts to be facts. Now the Act which I have referred to (38 and
39 Vic, c. 51) has to be read and incorporated with 35 and 36
Vic, c 19, which recites in the preamble that "Whereas criminal
outrages by British subjects upon natives of islands in the Pacific
Ocean, not being in Her Majesty's dominions nor within the
jurisdiction of any civilised Power, have of late much prevailed
and increased, and it is expedient to make further provision for
the prevention and punishment of such outrages." Therefore
the Act of Parhament and the Order-in-Council were both made
with the object of providing' for places " not being in Her
Majesty's dominions nor within the jurisdiction of any civilised
Power." From that I take it that anything I find stated as a
fact in this Order-in-Council is the law of the land, and is a fact
recognised by our law. Now the Order-in-Council states that
its hmits shall be the Pacific Ocean and the islands and places
therein, including certain mentioned, but exclusive, except as
this order expressly provides by subsection 2, of any place for
the time being within the jurisdiction or protectorate of any
Regina v. Vcs
AND OtUEBS.
, Harding J.
292 QUEENSLAND JUSTICE OF THE PEACE.
Kegina v. Vos civilised Power. Consequently this order cannot apply to any
AND OTHEEa. , , ^ , ... .,.,..,.. "^
place that is for the time being withm the jurisdiction or pro-
Hardmg J. tectorate of any civilised Power. Going on, I find that although
the order had a much larger application than what I am going to
read, yet it says in the sixth clause that jurisdiction under ii
shall be " exercised only in relation to the following parts of the
limits of this order, that is to say : — 1. The groups of islands,
so far as they are not within the jurisdiction of the German
Empire. ... 2. Any seas, islands, and places which are
not excluded by the fourth article of this order, and are situated
in the Western Pacific Ocean, that is to say mthin the following
limits : North, from 140 degrees east longitude by the parallel
12 degrees north latitude to 160 degrees west longitude, thence
south to the equator, and thence east to 149 degrees 30 minutes
west longitude ; South, by the parallel 30 degrees south latitude ;
West, by the meridian 140 degrees east longitude." I have
worked that out with the map which I had in Court, and I find
that this island of Malayta is within the specified limits. Conse-
quently the order applies to the island, and by a subsequent
section of the Act the jurisdiction to be assumed by any order
is not to cover dominion by Her Majesty, so that the order on
its face shows that this island is within its hmits, and being
within its limits the island itself to which it applies must be not
a dominion of Her Majesty ; and as the order is not to apply to a
place for the time being within the jurisdiction or protectorate
of any civilised Power, it must necessarily be outside the juris-
diction or power of any other State. I think, therefore, that on
the law Mr. Peez's objection is overruled. The Court must
necessarily have notice of all things which its subjects must have
notice of, and which they would be taken to have notice of at
their own trial. Now each of these men in the dock has notice
of the law, and is presumed to have actual knowledge of the law,
and under this Act of Parliament and these regulations that is
the law with respect to them. Now, could it for one moment
be conceived that the prisoners are to know the law and the
Judge is not ? That conclusion would be absurd, and I think
that the Judge must be held to know this judicially. I sympathise
to a certain extent with Mr. Peez in his argument that no metes
and bounds have been proved. If a mountain had been men-
tioned, the Court would have been unable without proof to ascer-
tain what were the bounds of the mountain. But an island is
land surrounded by water, and the moment one comes to the
CEIMINAL EEPORTS, 1860-1907. • 293
water they come to the limit of the land, and they can make Eegina v. Vos
no mistake, and the Court takes judicial knowledge of that.
I think that the Court has such information before itself that it Ha^iding J.,
•could find that island and the spot where this took place. So
that I overrule Mr. Feez's main objection. As to the other
point, that there is no evidence that the three islanders were
■carried away without their consent, the onus by the section
Tinder which they were being tried is thrown upon them. I
think that if the Crown simply made a prima facie case of suspicion,
the onus is thrown on the prisoners of clearing themselves and
showing consent. I also agree that if the offence was committed
by taking the islanders off the island, that that offence could be
compounded afterwards, and that it would be necessary for the
prisoners to show that the taking of these men from their islands
was from the first inception with their consent. Whilst in the
neighbourhood of the islands they were bound to be landed if
after consenting they withdrew their consent. So that it is
upon the prisoners right through. It was said with regard to
Hall that there was no evidence of his connection with the trans-
action from the beginning to the last. I think there is evidence ;
the weight of it is of course for the jury. The prisoner Hall,
having been mate on a ship, was a man in authority under the
captain, and in authority over others when the captain was absent.
I think that the fact that on a signal being made from the boats
Hall went to these boats, and after he got to them, from his
position as mate, it was his duty to satisfy himself of the state
of affairs. I think that when Hall had persons under his com-
mand— sailors and others — whose lives were in his hands, he was
in a place where he might be attacked by natives and firearms,
he ought at once to have satisfied himself of the position of affairs.
Had he looked round it is scarcely possible to conceive but that
he would have seen a man had been chopped in two parts of his
body with an axe and was bleeding at the arm. Had he seen
that, and it is for the jury to say whether he did or did not, it
was clearly his duty to make inquiry into the case. If he did not,
it was a prima facie case against him, and if he cannot discharge
himself by showing that these men were there by their own
consent — ^if the jury find these facts — why necessarily, a verdict
of guilty follows. With regard to the prisoners Absalom and
Dowsett, it is said that there is no evidence that they took part
in the carrying away of these boys, or aided and abetted or
counselled or procured the commission of the offence. No
294
QUEENSLAND JUSTICE OF THE PEACE.
Begina v. Vos
AND OlHEBB.
Harding J.
doubt there is evidence, but the weight of it is for the jury. They
were sailors in the ship, boatmen in the boat, and under the
command of others. So far they would probably only come in
as accessories, unless it were proved that they knew the actual
scheme to steal the men and they were actually taking part in
it. But if they came as aiders and abetters and accessories, then
they must have known of the crime they were taking part in ; and
if they did not know, or how far they did know, would be matter of
justification for them to the jury. With respect to the obeying
of superior orders, if under the circumstances they thought or
could have thought, or if the jury thought that they could have
believed the persons commanding them were justified in ordering
them to take away from these islands these men struggling and
crying, and wounding their captors, well then they will go free.
If the jury carmot think that they had any business to obey these
superior orders, but ought to have at once thrown down their
oars, and said, " We won't have any more to do with this," they
would have to show consent on the part of the natives. Then,
as to the prisoner Vos, there is direct evidence against him that
Quisoolia offered to steal him men and he sanctioned it. If
that is believed, well, there is ample evidence, but it is for the
jury to decide as to its weight. I have satisfied myself, for the
reasons I have given, that there was some evidence. Before I
dealt with each case I advised the jury that the weight and the
true value of that evidence is for the jury, and I do not wish
the fact that I have picked out pieces here and there to have any
influence with them. The question of the facts will be for them
in a future stage of this case. I am satisfied that there is evidence
on these points to go to a jury. I have judicial knowledge of
and have declared the status of the island. Mr. Feez, I over-
rule your objections.
The prisoners were subsequently acquitted.
Solicitors : O'Shea & O'Shea ; Winter & McNdb.
CRIMINAL REPOflTS, 1860-1907.
295
[Brisbane Ceiminal Sittings.]
REGINA V. KOVALKY.
[6 Q.Ii.J. 219.— Note.— See now s. 613 of Criminal Code. See R. v. Roche (3 Q.L.J.
139, ante p. 204.)]
Criminal law — Arraignment — Deaf mute — Insanity.
A person charged with murder was found mute by the visitation of God. A
fresh jury was impanelled to try whether he was sane or not. Evidence was given
that he bad not sufficient intellect to understand the proceedings so as to mal:e a
proper defence, challenge the jurors, or comprehend the details of the evidence.
HaBDiNG J. directed the jury, if they thought he had not sufficient intellect there-
for, to find him insane. The jury did so, and the prisoner was ordered to be
detained to be dealt with under The Insanity Act of 1884, Regina v. Pritchard (7
C. & P. 303) followed.
Inpormation against August Kovalky for murder.
The prisoner, on being arraigned, stood mute. A jury was
impanelled to try whether the prisoner was mute by malice or
by the visitation of God. Medical and other evidence was given,
and the jury found that he was mute by the visitation of God.
A fresh jury was then impanelled to decide whether he was
insane.
Evidence was given that the prisoner was a deaf mute, and
had not sufficient intellect to understand the proceedings of the
Court so as to make a proper defence, to challenge the jurors,
and comprehend the details of the evidence.
Harding J. directed the jury on the authority of Regina v.
Pritchard (7 C. & P. 303) that if they believed the evidence they
should find the prisoner insane. The jury found that the prisoner
was insane and could not be tried on the information.
Harding J. directed the prisoner to be kept in strict custody
in the Brisbane Gaol until he should be dealt with in the manner
provided by The Insanity Act of 1884.
1895.
26th March.
Harding J.
Harding J.
296 QUEENSLAND JUSTICE OF THE PEACE.
[BUNDABEEG CbIMINAL SITTINGS.]
REGINA V. MANY MANY AND OTHERS.
[6 Q.L.J. 224.— Note.— Case referred to in K. v. Tim Crown (6 Q.L.J. 283, )post.
See also R. v. Archibald (2 S.C.B. 47), ante p. 44 ; McNamara v. Edwards
(1907 S.R.Q. 9), post.]
1895. Criminal law — Evidence — Confession — Answers to questions put by
mhApril. ^ pp^^gg constable after arrest— b% Vic, No. 23, S8. 2, 10.
Harding J. ^ confession elicited by questions put to a prisoner by a police constable after
arrest and without caution is admissible against the prisoner unless the answers
have been induced by a threat or a promise.
Regina v. Gavin (15 Cox 656) any Regina v. Male (17 Cox 689) not followed.
Infokmation against Many Many, Forka, Narasamei, Miore,
Ohasbiby, and Quitongtonga, Pacific Islanders, for the murder
of a white man, whose name was unknown.
Evidence was given of the finding of the body of a man, and
several articles were found near the body and taken possession of
by the police. The Crown proposed to give in evidence, state-
ments made by each prisoner to a poHce constable after arrest
and without caution being administered. The constable pointed
out the articles to the prisoners separately and said, " You see
them ? " The prisoners answered, " Yes ; belong 'em old fellow
white man ; me altogether kill 'im."
Scott, for the prisoners, objected, and submitted the police had
no right to ask questions after arrest, citing Regina v. Bodkin,
9 Cox, 403 ; Regina v. Gavin, 15 Cox, 656 ; Regina v. Male and
Cooper, 17 Cox, 689 ; Regina v. Walker, 13 V.L.R. 469 ; and
submitted the question was not affected by 58 Vic., No. 23, s. 10.
Power, for the Crown, submitted there was no inducement,
and pressed for the ruhng of the Court.
Harding J. Habding J.: The Evidence and Discovery Act of 1867 was
meant to be a code on the law of evidence for Queensland. Sec.
64 of that Act dealt with confessions, and is identical with sec.
11 of the New South Wales statute, 22 Vic, No. 7. Sec. 64 was
repealed last year by The Criminal Law Amendment Act, and a
new provision enacted, which now regulates the law under sec.
10. This provision is that no confession shall be received which
has been made under the influence of a threat or promise made
by a person in authority. That re-enacts the old law, with this
exception : that it leaves out the provision of the Act of 1867,
which regulates a confession induced by an untrue representa-
CRIMINA.L REPOBTS, 1860-1907.
297
tion, or a confession induced by a threat or promise made by any
person whatsoever. Now the law provides that the threat or
promise inducing the confession must be made by a person in
aathority. When this law came into force in New South Wales
the law in England was different from that cited by the learned
counsel for the defence. In Roscoe's Criminal Evidence, 10th
Ed., p. 51, it is stated that a confession is admissible in evidence
where it has been eUcited by questions put by a person in author-
ity. The law of England before 1867 is to be found in the case .
of Eegina v. Thornton, 1 Mood, C.C. 27, also in Russell on Crimes,
vol. iii., p. 472, and the cases collected in Archbold, 264-266 all
contained the same ruling, till Regina v. Gavin, which was decided
after the passing of the Colonial Act. In England, where there
is no statutory law on the subject, it appears to me that the judges
have been expanding the rule against the admission of confessions.
The New South Wales statute was passed in 1858, before Separa-
tion. So far as I know, it has been the constant practice here to
■allow such answers to go in. I have frequently had occasion to
comment on the impropriety of obtaining evidence in such a way,
but I am certain the above has been my practice, and I have a
strong recoUection of Sir Charles Lilley also having made it so.
His charge to a constable in one case was, " Keep your eyes open,
and say nothing." But he held that if a constable did ask any
questions of a prisoner when under arrest, although it was morally
wrong, the evidence was not inadmissible. It has been decided
at least six times in New South Wales that such evidence is
admissible. These cases are cited in Wilkinson's Magistrate, pp.
118-119. In the case of Regina v. Spring and Mason, where the
accused were charged with murdering one De Witt, the learned
judge would have admitted the confession, had not the statement
that induced it been untrue. That was as far back as 1860. I
think, therefore, that as regards the law in the Colonies, the
matter is res judicata. If it is not, I am perfectly willing to assume
the responsibility of deciding it myself. I admit the evidence.
The prisoners were convicted and sentenced to death.
Solicitor : Thorburn.
Beoina u.
Many Many
AND Others.
Harding J.
298
QUEEISSLAND JUSTICE OF THE PEACE.
1895.
15th May.
Chuhb J.
Chubb J.
[Chaktees Towers Criminal Sittings.]
REGINA V. ROSS.
[6 q.L.J. 261.— Note.— See now s. 619 of Criminal Code.]
Criminal law — Murder — Practice — Statement of prisoner read to
jury.
A prisoner was allowed to read a statement to tbe jury after his counsel's address,
and the Crown Prosecutor was allowed a reply on the new matter.
Bcgina v. Shimmin (15 Cox 122) followed.
At the Circuit Court, Charters Towers, held before Chubb J.,
in May, 1895, George Ross was tried for the murder of his wife,
Annie Ross. At the close of the case for the Crown, Macnaughton,
for the prisoner, announced that he did not intend to caU witnesses,
but asked the Court to allow a written statement, signed by the
prisoner, to be read to the jury before he addressed them on his
behalf.
Chubb J. : The prisoner is now, by The Criminal Law Amend-
ment Act, 1892, a competent witness on his own behalf. Why
cannot he give this statement on oath ?
Macnaughton : He is in such a state of nervous anxiety that
I do not think he is physically able to give evidence. In Regina,
V. Blacks, 1880, Bowen J., on a trial for murder allowed this
course. In Regina v. Doherty (16 Cox, 306), Stephen J. did the
same, subject to the right of the prosecution to reply.
Chubb J. : In Regina v. Milehouse (15 Cox, 622) Lord Coleridge
C.J. says that it may be done after his counsel has addressed
the jury, and that this was resolved by the majority of the Judges,
in which he did not agree. The question was considered at a
meeting of all the Judges liable to try prisoners, held in November,
1881, and adjourned for further consideration. After this
meeting. Cave J., in Regina v. Shimmin (15 Cox 122), allowed the
prisoner to give his own version of the facts after his counsel had
addressed the jury, subject to a right of reply by the prosecution
on the new matter, and His Lordship said that this was the rule
of practice intended to be followed in future. Now that the
prisoner is a competent witness for himself, ought the practice
to be continued ? I do not know of any settled rule in this Court
one way or the other. For the present, therefore, I will follow
Regina v. Shimmin, and allow the statement to be read after you.
have addressed the jury.
CRIMINAL REPORTS, 1860-1907.
299
MacnaugUon then addressed the jury, after which the prisoner's Eeoina^Boss,
statement was read by his counsel and handed to the associate.
Jameson rephed for the Crown.
The prisoner was convicted of manslaughter.
[ROCKHAMPTON CIRCUIT COUET.]
REGINA V. WILLIAM TRACEY.
[6 Q.L.J. 272.— Note.— 29 Vic, No. 11, ss. 15 and 16, are repealed, see now s. 410 of
Criminal Code as to definition of loaded arms to same effect as s. 16 of repealed
Act (29 Vic, No. 11).]
Criminal law — 29 Vic, No. 11, ss. 15, 16 — Attempt to discharge
a loaded arm — Failure of attempt from want of priming or
other cause.
A revolver, loaded in some of its chambers, and capable of being; discharged if
the trigger is drawn a sufficient number of times, is a loaded arm within the
meaning of 29 Vic, No. 11, s. 16.
The prisoner drew the trigger of a six-chambered revolver, which was loaded in
three consecutive chambers, three times, the hammer falling upon the empty
chamhers. Before he had time to draw the trigger a fourth time the weapon was
knocked oat of his hand.
Held, there was evidence of an attempt to discharge loaded arms.
The information against the prisoner was under 29 Vic, No. 11,
s. 15, for attempting to discharge loaded arms with intent to
murder.
Power for the Crown.
Pattison for the prisoner.
It appeared that the prisoner, on the 19th May, had been
drinking and fighting with another man in the yard of an hotel
at Barcaldine. There was a large crowd of men in the yard.
The prisoner had knocked down his opponent, who rose, and
was about to renew the struggle, when the prisoner drew from his
belt a six-chambered self-acting repeating revolver, loaded in
three consecutive chambers, and pointed it at the -crowd. At
this moment a police constable in plain clothes rushed through
the crowd, and cried, " Stop that, Tracey ! " The prisoner then
pointed the weapon at the constable's breast, and said, " Stand
back, or I'll put a ball through you," and immediately drew the
1895.
Mth September.
Chubb J.
300
Regina v.
William TBACBt.
Chubb J.
QUEENSLAND JUSTICE OF. THE PEACE.
trigger three times. Three distinct cHcks of the hammer faUing
on the chambers were heard, but the hammer having fallen on
the unloaded chambers, it was, of course, not discharged. Before
the prisoner could draw the trigger again the constable closed
upon him, and knocked the weapon out of his hand. Upon
examination, it was found that the next pull of the trigger would
have caused the hammer to fall on a loaded chamber.
The question was raised whether the revolver was a loaded
arm within the meaning of the statute, and whether there was
evidence of an attempt to discharge it.
Chubb J. referred to Regina v. Jackson, 17 Cox, 104, per
Charles J., and said he was of an affirmative opinion on both
points, but would, if necessary, reserve the questions for the
consideration of the Full Court.
The prisoner was acquitted.
1895.
2nd December.
Griffith CJ.
[Brisbane Criminal Sittings.]
REGINA V. FREEMAN.
[6 Q.L.J. 281. — Note. — As to challenge, see now s. 611 of Criminal Code. As
to Crown showing cause for challenge, see R. v. Shaw (7 Q.L.J. (N.C.) Ill),
post. Case followed in R. v. Wardell (9 Q.L.J. 49), post, and R. v. Johnstone
(1907. S.R.Q. 155), post]
Trial on criminal charge — Jurors — Challenges — Order to stand by
— Proceedings in absence of jury — Evidence — Dying declaration.
A juror coming to the book to be sworn had put out his hand and had touched
but not grasped the book, when he was called upon by the Crown to stand by.
Held, that that the order to stand by was not too late.
The time during the empanelling of a jury at which the Crown shall show cause
for their challenge is in the discretion of the Court.
The whole of the proceedings in a criminal trial must be in the presence of the
jury.
On the trial of A for murder, a statement by the deceased person B was tendered
as a dyin^ declaration. At the time of her making the statement B was in danger
of her life from blood-poisoning, of which she died five weeks later. She was
informed by her medical attendant that she would never recover. She said, " Let
me die." A magistrate was then brought, who said to her, "Are you sure you will
never recover?" She said, "Yes." She then made the statement in question,
which was reduced into writing by the magistrate. He then read the statement
over to B, and she said it was correct. The magistrate then said, "Do you expect
CRIMINAL ■ REPORTS, 1860-1907. i 801
ever to recover?" B said, "No." The magistrate then said, "This is your Eegina v.
dying declaration, will you sign it ? " B signed it. Fbeeman.
Both before and after the making of the statement B asked her nurse, "Do you
think I shall die ? " The nurse said, " No. "
The statement contained the words, "Being in a serious state and not expecting
to recover."
Held, that the statement oould not be admitted.
Trial of Howard Freeman on a charge of the murder of
Katherine Noble Crofton, before Griffith C.J. and a jury, at the
Brisbane Criminal Sittings.
Power appeared to prosecute.
Lukin for the prisoner.
During the empanelling of the jury, a juror, Frederick Webb,
was ordered by the Crown to stand by. Mr. Lukin objected that
challenge was too late.
On inquiry from the tipstaff and the juror himself, it appeared
that the latter had put out his hand towards, and had touched
the book, but that it was still entirely resting in the officer's hand
when the juror was called upon to stand by.
Power referred to Roscoe, p. 197, and to Joy on Confessions,
p. 217.
Griffith C.J. : I think the challenge was in time. The juror
will therefore stand by.
When the jury panel had been gone through twice, only ten
jurors had been sworn, the prisoner's counsel having peremptorily
challenged seventeen jurors. The other jurors had been ordered
to stand by. The first of these jurors was then again called,
and was again ordered by the Crown to stand by.
Lukin : This is the third time of calling the panel. The Crown
can now only challenge for cause.
Power : The Crown need not show cause for their challenge
until it appears that a jury cannot be empanelled without recourse
to the jurors ordered to stand aside by the Crown.
Griffith C.J. : The judgment of Bramwell B., in Mansell v..
Regina (D. & B., 375) is directly in point. I will follow his^
opinion, and I therefore hold that the direction to stand by at
this stage is to be considered as an application to the discretion
of the Court to allow the assignment of cause for the Crown's
challenge to be postponed. As there are still some twenty
jurors unsworn, I will allow the assignment of cause to be post-
poned accordingly.
302 QUEENSLAND JUSTICE OF THE PEACE.
Eegina v. During the trial Lukin wished to cross-examine witnesses as
^ ■ to the admissibility of a statement tendered by the Crown as
evidence against the prisoner, and proposed to do so in the absence
of the jury.
Griffith C.J. : I do not think that such a course can be
followed. The jury must, I think, be present throughout the
whole of the proceedings.
A statement made by the deceased was tendered by the Crown
as a dying declaration.
The circumstances of the making of the declaration appeared
by the evidence of Dr. Budgett and J. W. Ayscough, and were
as above set out.
Lukin objected to its reception, and cited R. v. Osman (15 Cox,
C.C. 1), R. V. Gloster (16 Cox, C.C. 471), R. v. Smith (16 Cox, C.C.
170), R. V. Forrester (4 F. & F. 857), R. v. Reaney (1 D. & B., C.C.
156), 26 L.J. (M.C.) 43).
Power referred to R. v. Reaney {swpra).
Griffith C.J. Geiffith C.J. : I have had some difficulty in coming to a
conclusion on the evidence whether at the moment the deceased
made the statement she had a settled and hopeless expectation of
death, or whether at that time she still entertained some slight
hope that she might recover, or at any rate, would linger for some
considerable time. In the case of R. v. Reaney (1 D. & B., C.C.
156), which has been cited by counsel for the defence, it was laid
down that the question turned upon the state of the person's
mind at the time of making the statement rather than upon the
expected interval before death. In that case it is to be observed
that the patient was suffering from a broken spine, a mortal
injury, and knew that he must die. In this case I believe the
words used at the time of the declaration were substantially
as described by Mr. Ayscough and Dr. Budgett. Ayscough's
evidence is that he said to Mrs. Crofton, " You are not expected
to recover ; we have come to take your dying statement ; you
appear to be very ill ; do you ever expect to recover ? " She
replied, " No." And that after he had taken the statement he
said, " This is your dying statement ; do you expect to recover ? "
and that she again replied, " No," Dr. Budgett thinks the
question might have been in this form, " Are you sure you will
never recover ? " To which she replied, " Yes." For my own
part I do not pay much attention to the supposed exactness
of verbal recollections of conversations related after a considerable
CRIMINAL REPOETS, 1860-1907.
303
interval of time. In Reaney's case a good deal of reliance was
placed in argument upon the word " ultimately," as in this case
upon the word " ever." I have come to the conclusion, after
considerable fluctuation of opinion, that at the time Mrs. Crofton
made the declaration she believed that her illness was fatal, and
that she would probably never get well. But I do not think she
thought that death was actually impending. I think she had
some sort of lingering hope of recovery, and I am confirmed in
that view by the initial words of the statement itself, namely :
" Being in a serious state and not expecting to recover." Under
aU circumstances I do not think that the deceased woman had
at the time when she made the statement such a belief in the
imminence of her death as to render the statement admissible
as a dying declaration. I therefore reject the evidence.
The prisoner was acquitted.
Solicitors for prisoner : O^Shea & O^Shea.
BeQINA I'.
Fbebmak.
Griffith C.J.
[Full Court.]
REGINA V. TIM CROWN.
16 Q.L.J. 283.— Note.— See also R. v. Archibald (2 S.C.R. 47, ante p. 44 ; McNamara
V. Edwards (1907 S.R.Q. 9), post ; R. v. Murphy (5 Q.J.P.R. 86).]
Grown case reserved — Evidence — Admission made by prison 
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